Month: July 2020

Difference between Promise, Agreement and Contract

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The article, written by Akshit Gupta, a second-year law student at Bharti Vidyapeeth, New Law College, Pune, explains the definitions, characteristics and differences between various components of a valid contract ie. Promise, agreement and contract.

INTRODUCTION

A promise to do something between two parties, or not, is said to form a sort of mutual understanding in pursuance of individual interests. Such an expression of the will of the person to another is called a proposal.  This expression of interests with an intention to enter into a valid accord enforceable by law is termed is agreement. The entire transaction gives rise to the entity called a contract. One may look at these few lines as the entire process of contract formation summarized, however, in the actual picture, the process is quite complex and intricate. The isms and ologies of the legal jargons do make the process of forming a bilateral agreement quite ambiguous in a layman’s language, yet one cannot deny the fact that by virtue of proper laws and regulations pertaining to contracts and agreements is the very bedrock upon which the tallest of tallest accords and treaties are erected.

Proposal to contract

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;”

Section 2(a) of the Indian Contract Act,1872 defines a proposal or offer as a situation wherein a person expresses his intention to do, or refrain from doing something, to another person, keeping in mind that the person to such a proposal is made consent is sought. Further, s. 2(b) accords the status of “promisor” and “promisee” to the respective parties once the offer is accepted and ripens into a “promise”. Such acceptance of proposal shall be communicated by the promisee to the promisor, or likewise offeree to the offeror, for the agreement to become legally binding. Here the word “communication” has a sui generis character of definition by way of its completion. Whenever any such acceptance of an offer is made, it has to be communicated by the person to which such offer is made by the offeror, such communication must be made in a prescribed format aggregable to both parties. In the case of Felthouse vs. Bindley (1862).  it was observed that communication of acceptance or revocation of an offer must be transmitted in clear terms. An agreement whose communication of acceptance is not in vague terms cannot be materialised on the pleasure of one party alone.

  • Consideration –  A very essential element of proposal and subsequent agreement is the consideration for whose sake the acceptor promises to do, or abstain from doing something, on the persuasion of the offeror. Without consideration, the promisor does not have any teeth to enter into a valid agreement. Understanding it in plain terms through an illustration, If A promises to pay B a sum of Rs. 1000 to sell him 5 litres of oil and B accepts for the same, then Rs. 1000 is the consideration for a promise for B and vice-versa. This consideration, however, under section 2(d) is subject to lawfulness and should be moral and temporal in nature. 
  • Invitation to offer –  An offer and invitation to offer have slightly varying shades of meaning.  The elucidation of Section 2(a) can be reversed to find out that an invitation to offer is merely an invitation made by an offeror to the offeree to make an offer in return of his consideration. Here the intention of the offeree is the key player while determining the terms of a contract. For instance, the tags we see attached to the products in a shop are not offered, instead, they are explicit invitations to offer. Since an invitation to offer is merely a proposal, it’s acceptance does not entail a binding obligation to make an agreement, since it lacks a common intention to do so, but only spawns another offer.

Case Law 

Carlil  vs. Carbolic Smoke Balls Company  (1892) 2 QB 484 (QBD)

Landmark judgement of the English Law and a Contract Law staple, this case pivots on the principle of general offer and intention to create a legal obligation. In this case, a pharmaceutical firm advertises the claim of a medicine which could cure influenza , and if anyone’s symptoms persisted, he/she was entitled to a compensatory award of £100 . The complainant even after consumption of the medicine caught influenza and demanded the claim from Carbolic Smoke Ball Co. they refused and were sued by Carlil. The Jury took up the view that the grounds of denial of the respondent were unacceptable , since there existed a substantial unilateral agreement between the Co. and the general world with regard to the offer. Also, the conduct of the respondent, being such that the amount of £1000 was already deposited in the bank on behalf of the Co., clearly showed the intention of the offeror to enter into a binding contract with the claimant.Also, other ingredients of a valid agreement – lawful consideration and acceptance of the offer being present held the respondent liable to pay the plaintiff the promised sum.

Agreement between two parties 

Agreement s. [2(e)]– 

“Every promise and every set of promises, forming the consideration for each other, is an agreement”

  • As defined earlier in s. 2(d), consideration is a value for which the promise acts or omits to do something, at the desire of the promisor. A collection of such considerations form a valid agreement. An agreement must be free from any coercion, influence or inducement caused to the party whose consent is sought by the counterpart is voidable at the option of the party coerced. As seen in the case of Chikkam Ammiraju vs. Chikkam Sheshaama  (1917), coercion (s.15), or undue influence (s.16) amounts to the pressure exercised upon a party, by another to execute the agreement deed, with threat or fear being an instrumentality.
  • The particulars of the bodily state of parties entering into an agreement are given in s.11 of the Act, providing that no one of the parties shall be of unsound mind or minor. The term unsound mind or ‘lunacy’ applies to the point of time at which the person agreed to enter into a contract. Such a person is incompetent to partake in a valid agreement by virtue of his inability to comprehend to terms and conditions of the offer. Hence the validity of any such document of agreement bearing the signature of such a person is null ab-initio (Keolapati and Ors. Vs. Ram Krishna Narain Singh,1974). Likewise, any minor does not have the capacity to enter into a contract, and even so, such agreement made anyway would have no statutory force. The age of Majority has been defined as “Any person having attained the age of 18” as per s.3(a) of the Indian Majority Act (Mohoiri Bibi vs. Dharmodas Gosh,1903).
  • An agreement can be both oral or written. The virtue of either does not diminish or expand the effect of any agreement thus commissioned, yet it is always advisable to have a written draft of an agreement made at the disposal of both the parties. Oral agreements are subject to agreeability and amiability between the parties, lest they become conflicting in nature under s.13 of the Act. However, the legal system cannot condescend or deny an agreement manifested orally. In fact, all those agreements encompassing all necessary conditions of a valid contract-free consent of parties, majority etc. qualify to be declared ‘not void’. In the case of Alka Bose vs. Parmatma Devi & Ors (2000)  The Supreme Court held that all those agreements that are in consonance with the provisions of s.10 of the Act shall be considered legal and enforceable.

Case Law 

Brogden v Metropolitan Railway (1877) 2 App. Cas. 666

This case stressed the existence of implied consent and willingness to contract, albeit not expressly exhibited. The facts of the case are that the plaintiff had an agreement to supply coal to the defendant. For some time the two parties agreed to trade without any formal written agreement. After a while, the defendant decided to draw up a formal agreement and sent it to the plaintiff for review. The plaintiff made some changes in the contract and sent it back to the defendant for rectification. He filed the documents but failed to send it back to the plaintiff. After some time, some serious disagreements arose between the two and the partnership was called off. The Plaintiff sued the company for damages. The Company contended that there was no formal contract. In the judgement, it has held that since the defendant reflected its intention to make a contract, by way of its conduct, there subsisted a valid contract. Also, the communication of acceptance of the offer was made on part of the defendant, does not dismiss the actual contract, since the intention of the company was present to concede to the additions by the plaintiff, there existed an implied consent which, even when communication of acceptance wasn’t complete, sufficed in establishing a no-objection certificate issued by the defendant in the reflection of his conduct. Hence, the verdict remained that there existed an informal and legally enforceable contract between the two, as a result, The Metropolitan Railway was liable for damages to the plaintiff.

Contract, the upshot 

Conclusively speaking, the contract can be seen as the climax of an agreement making, having an amalgamation of all necessary ingredients of a legally enforceable agreement. A contract essentially has all the merits of a valid agreement, however, the vice-versa is not always true i.e. all contracts quality to be agreements, but all agreements do not qualify to be a contract. The definition of contract, up till and including s.2(h), conclusively and crisply lays down how and what a valid contract is born. Besides, Contract entices an intention to enter into a legally binding pact, such intention is missing in case of an agreement as both parties are not legally obligated to provide or any specific performance. As cited in the Balfour vs. Balfour(1919) case, not every oral promise or pact amounts to a contract. At times, it is left to the discretion of the parties to form a mutual arrangement, but the enforceability of such agreement is nullified at times such a pact is sought to be taken to the court. Thus, it is safe to conclude that the ambit of the contract does not cover all vague agreements and promises to the extent that they have a legal personality of their own.

Bibliography

  • Indian Contract Act, 1872 (Act no. 9 of 1872) 
  • The Indian Majority Act, 1875 (Act no. 9 of 1875)  s.3(a)
  • The Indian Penal Code, 1862 (Act no. 45 of 1860) s.15

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Haynes v. Harwood [1935] 1 KB 146

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This article is written by Gaurav Lall pursuing BBA LL.B. (Hons.) at United World School of Law.

INTRODUCTION 

In Haynes v Harwood [1935] 1 KB 146, case the Defendant left a horse-drawn van unattended in a crowded street. The horses bolted when a boy threw a stone at them. A police officer tried to stop the horses to save a woman and children who were in the path of the bolting horses. The police officer was injured.

Court

Court of Appeal of England and Wales.

Bench

Greer, Maugham, and Roche LJJ.

Decided On

1935

Equivalent Citation

Haynes v. Harwood, [1935] 1 KB 146

Brief Facts and Procedural History

The plaintiff was a police constable on duty inside a police station, located in a busy street, often attended by many people, including children. The defendants owned a two-horse van which was left unattended by its driver in the same street. The driver had put a chain on one of the wheels of the van that was subsequently broken. For some reason, supposedly because a stone was thrown at the horses, they bolted along the busy street alongside with the van. The police constable saw them from the police station, got out and managed to stop them but sustained injuries, in respect of which he claimed damages. The plaintiff claimed damages in this respect through the King’s Bench in 1935. The bench ruled in favour of the plaintiff as opposed to the defendant. The defendant (Harwood) filed for an appeal in the Court of Appeal, which was later dismissed.

Issues before the Court

When someone knowingly puts himself or herself in danger to protect others, is the negligent party liable for damages suffered in the protection effort 

Whether the principle of volenti non fit injuria will be applied?

Ratio of the Case

The doctrine of the assumption of risk does not apply where the plaintiff has, under exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, whether or not the person endangered has owed a duty of care by the plaintiff. The plaintiff, a policeman saw a horse running loose in the street among children. 

Decision of the Court

The Court of Appeal held the defendant liable for Haynes’ loss. On the novus actus interveniens argument, they held there had not been a break in the chain of causation between the defendant’s act and claimant’s loss.

Rule/ Case Law

“Negligence, in order to give a cause of action, must be the neglect of some duty owed to the person who makes a claim. In the case, if the duty was owed to, among others, if the plaintiff is affected by the want of care of the Negligence of the defendants that is the Negligence of which the plaintiff can avail himself as a cause of action.” -Greer, LJ

Novus Actus Interventions is a Latin term for a new intervening act which breaks the chain or the connection between the wrong. In Lynch v Nurdin, undoubtedly, there was a Novus actus interventions  namely, them is the conduct of the boy who started the horse; but it was held that none the less the accident, and the damage, could be served as a result of the defendant’s wrongful act because it was to be predicted that children were bound to be mischievous and that anyone who invites or gives an opportunity to the mischievous children to do a dangerous thing cannot escape liability on the ground that he did not do the wrong but that the mischievous children did it. 

Volenti non-fit Injuria is a common law doctrine which states that if someone willingly places themselves in a position knowing degree of harm, will be not able to bring a claim against the other party in tort. 

Critical Analysis

“Negligence is the failure to use reasonable care or doing something which a reasonably prudent person would not do.”

The defendants are guilty of negligence under the virtue of leaving the horses unattended in a busy street. The defendant in the first place owed a duty of care to his neighbour’s, which he breached as and when the horse carriage was left unattended and untied. The resultant damage was caused to the plaintiff when he got injured while trying to save the woman and the children so endangered. Also, the defendant could anticipate the damage that could have incurred if some mischievous act would have been done on the horse. Hence, the Court held that there was negligence on the part of the defendant. Presenting his side as against the plaintiff’s defense, the defendant argued that volenti non-fit Injuria could be applied to justify his stand because the police constable willingly involved himself in an act which would inevitably have caused some injuries. The Court, in turn, held that there was evident Negligence on the part of the defendant, for the plaintiff owed a general duty to the public and hence the principle of volenti non-fit Injuria would not apply. The Court determined whether the plaintiff had acted reasonably with the context of Brandon v. Osborne, Garrett & Co. Ltd. It should be noted that Greer L.J. went further than Finlay J. His decision seems to suggest that a policeman or anyone, and still more a policeman, has a general duty to the public to preserve life and property.

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All you need to know about the SC and ST(Prevention of Atrocities) Act,1989

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This article is written by Nazar Nawaz Abbasi pursuing LLB from Faculty of Law, University of Delhi.

INTRODUCTION

SC/ST (prevention of atrocities) Act of 1989 is remarkable legal protection granted to the depressed classes against atrocities happened to them. It is a law which not only defines cruelty against SCs and STs but also makes so many rules, regulations etc. for protection of these sections of society.

SCs and STs are the most marginalized sections of Indian society. Many atrocities have been committed against them since time unknown. The SC/ST Prevention of Atrocities Act of 1989 protects them against discrimination and cruel act. However, the SC/ST act can never be called a successful law.

Forms of Atrocities against SC/ST 

1.Cow vigilantism

The term Cow vigilantism describes the lawlessness happening under the name of Cow protection.

  • SC/ST and Muslims are at the receiving end of this atrocity.
  • SC/ST are concentrated in the occupation of leather making from skin obtained from the cow, they are invariably targeted by vigilantes.

2. Honour killing

In a country like India, where caste structures are still dominant in the form of endogamy, honour killings are prevalent on large scale.

  • In Lata Singh vs. the State of UP, Supreme Court has decided that inter-caste marriages are in the national interest as they destroy the caste system.
  • Bhagwan Dass v. Delhi  states that honour killings in the  rarest of rare category of crimes that deserve the death penalty.

3. Social Boycott

  • Khap panchayat – Khap panchayat often acts as an arena for perpetrating atrocities against SC (Dalits) by ostracizing them from society.
  • Bhim Rao Ambedkar had recognized the atrocities meting out to Dalits in the form of social boycott. He fought against the practice.

4. Caste Clashes

  • In rural India, OBC(Other Backward Class) became dominant caste by ousting upper-caste due to-
  • They were able to convert their strength in numbers into political force once universal adult franchise came.
  • Post-Indian rural development model was favourable to them.
  • On the other hand, the Post-Independent development model didn’t result in the upward mobility of SC(Dalits). Thus OBCs became the new oppressor of SCs in place of traditional upper castes.
  • Post-1990 reforms, there was a resurgence among Dalit due to
    • Reservation policy led to the emergence of the middle class among Dalits who attack Dalit(SC) movements.
    • Urbanization and other opportunities followed by 1990 reforms lead to improvement in Dalits(SCs) life.
  • This occurrence was met with violent clashes among upper castes/OBCs and SCs/STs.

Why in News?

1. In early 2018, the Supreme Court stressed the need for providing inbuilt safeguards within the SC and ST (prevention of atrocities) Act of 1989 to struck down some and provided guidelines.

2. Following a widespread protest from SC (Dalits) against the verdict, the Union Cabinet had given its nod to the Amendment Bill to restore the original provisions of SC/ST (Prevention of Atrocities) Act of 1989.

Why does the act need to be amended?

1. The 1989 Act penalizes those who insult by caste remarks and even denies anticipatory bail to the suspected offenders.

2. There was acknowledged abuse of the power to arrest under the Act.

3. The law is used to rob a person of his personal liberty merely on the unilateral word of the complainant.

4. Public administration has been threatened by the abuse of this Act.

5. Public servants find it difficult to give bad remarks against employees for fear that they may be charged under the Act.

6. Parliament could not allow arrest without a fair procedure and Article 21 has to be read into every provision of law.

7. Hence the Supreme Court had struck down some original provisions of the Act and issued some guidelines to protect people against arbitrary arrests under the Act

SC Guidelines

1. It is directed that public servants could be arrested only with the written permission of their authority who appoints them.

2. In the case of private employees, the SSP(Senior Superintendent of Police) concerned should allow it.

3. An initial inquiry should be conducted before the FIR was registered.

4. This was to check if the case falls within the ambit of the SC/ST Act of 1989, and whether it was frivolous or motivated.

Way forward

  1. Article 338 stipulates that governments should consult the “National Commission for SC” on all major policy matters affecting Scheduled Castes.
  2. Article 338 A mandates all major policy decision affecting STs to be taken in consultation with “National Commission for Scheduled Tribes”.
  3. Considering this, the Supreme Court is also bound to hear these commissions before pronouncements that are likely to impact SC/STs on a whole.
  4. But in its urge to take out the misuse of SC/ST atrocities act, the court seems to have subdued constitutional prudence and overlooked the commissions.
  5. Some argue that the Supreme Court decision doesn’t constitute a major impactful policy decision and that it merely tweaked the existing act.
  6. But spontaneous protests that erupted in the aftermath indicate otherwise, and the verdict was definitely seen as a major affront on social justice.
  7. However, it is important for the bill or ordinance to provide in clear terms the reasons for reversing the SC order by pondering on the logic applied by the court.
  8. In this case, the SC order was based on the argument that the SC/ST Act was being misused, which needs to be decried for lack of substantiated evidence.
  9. Hence the task of balancing the rights of innocent persons facing false accusations and the need to accord legitimacy to the Atrocities Act requires compassion, reverence for the Constitution and awareness.

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Ex Turpi Causa Non- Oritur Actio

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Author Mansi Malik a fourth-year law student at Lovely Professional University, Phagwara, she is currently interning with Lexpeeps.in

“The article traverses about the illegality defences in tort, contract and English Trust laws”.

INTRODUCTION

Generally, when the person does an illegal, immoral act and due to it, if the person suffers a loss or damage he has the right to move to the court and seek damages, compensation. For instance, A causes Hurt and Assault to B, B has the right to sue A for the loss, or injury caused. However, in some cases, there are some defences where the person has no legal remedy to sue, claim damages for the loss occurred. This means no legal action arises against the illegal act, the plaintiff has no right to claim damages from the defendant because he himself has committed an illegal act and the consequence arises out of his own illegal act does to give the right to person to claim damages from defendant this is known as Ex Turpi Causa Non- Oritur Actio. also known as plaintiff’s wrongdoer defence.

Illustration: A and B decided to commit robbery, however during such act A got injured due to B’s negligence. Now A has no right to bring a suit or claim any legal remedy, damages, loss, against B, because as per the maxim it is clearly said if the person himself is involved in such illegal, immoral act he/ she cannot sue another for the damages arising out of such act.

Illustration: A entered into a contract with B for performing an illegal act however if B renders the contract and A suffers a loss, A has no legal remedy to file suit or claim damages.

Applicability in Indian Laws

The above Latin maxim is widely used by advocates for the defence to the defendant. These are called as the general exceptions the maxim applied to various subjects of laws, instance law of tort, Indian contract Act and Law of Trust. It allows a defendant to escape its liability even though the act done by him is an illegal or immoral act. Now the question arises why such defences are to be applied. Why will a defendant not be held guilty for an illegal act?

According to Lord Mansfield he referred in the case Holman v. Johnson 1775 held that a plaintiff has no liability to claim damages out of an illicit act performed by it, however, this defence is not applied to the defendant but it is applied to prevent the plaintiff from claiming damages out of the act performed by it. It also mentioned that if a plaintiff becomes defendant and vice- versa, then also the suit brought by the plaintiff will be nullified as per rule potior est conditio

The defendant is this means that both the parties are at fault equally hence the defendant is much stronger than the plaintiff.

In the case, Walsh v. Trebilcock 1984 The court observed that ex turpi causa non-oritur actio is a well- known Latin maxim and as per its principles stated, the court shall not enforce or cognizance any suit brought out of illegal and immoral act. Even if the defendant has not pleaded for his defence but as per the evidence proved its been clearly shown that act of the plaintiff arises of the illegal act then, plaintiff has no right to claim for losses occurred or for damages arises.

In 2016, the United Kingdom has provided the determining principles in case Patel v. Mirza 2016 and overruling test in Tinsley v. Milligan 1993 Lord Toulson held that Looking towards the maxim there are policies stated for the common law doctrine of plaintiff’s wrongdoer, and held that the most important principle of the maxim is that the plaintiff should not be enjoying a profit out of his/her own illegal act. And the second principle is, the Court should be unified rather than self- defeating for the illicit act performed by the plaintiff.

In T.C Limited v. George Joseph Fernandes & Anr 19 November, 2004. The Honorable supreme court held that even at the beginning of the contract the act was not illegal but however in the later stage it is rendered by an illegal act. And even if the contract is illegal and not binding on the parties then the arbitration clause will also not be binding over the parties, but if it is proved that the act is illegal and binding on the parties the court shall not enforce any remedy to the defaulter plaintiff.

Essentials

There are two important essentials for plaintiff’s wrongdoer defense

  • The legal action is brought up by the plaintiff in lieu of damages/ loss occurred by an illegal act.
  • The legal action brought by the plaintiff must arise in a specific course of action that must be illegal.

It is necessary to fulfil the two conditions then only the defendant has the right to seek defence under Ex turpi causa-non oritur actio. And no suit can be enforced by the plaintiff for claiming damages.

Determining Test

Test of Reliance: This states that in order to show that plaintiff has suffered damage he must prove that defendant has done an illegal act and plaintiff has no cause of action and he has not relied on such illegal act being performed then plaintiff rights succeeds.

Principle of No Benefit: It states that the criminal is not allowed to take any benefit, from his illegal, immoral and criminal act. Thus, the court must ensure that suit shall not be enforced out and the claim arises by the plaintiff fails. Under the law of torts, such principle of no benefit is not much significant.

Illustration: A did criminal trespass in B’s house in order to commit theft. However, B finds out that A is committing theft and B used a force over A and unfortunately A dies, Now A’s widow can’t claim damages from B as the act performed by A was itself an illegal act.

Proportionality Test: It states that out of proportion of an illegal act, if the plaintiff got an injury by the Defendant, then the defence of ex turpi causa non oritur actio does not arise.

In Lane v. Holloway 1967, (3 WLR) 1003: Claimant was an old gardener, went to a cafe which is run by the defendant. One day the claimant shouted with abusive words towards defendant’s wife and in a sudden anger defendant ran outside, claimant thought that defendant is about to use force on him, he punched the defendant and defendant too started hitting and punching claimant’s face, this led to surgery and even stitches, however, the claimant brought a suit over the defendant and claim for damages, the defendant stated that there was an illegal act performed by the claimant itself. And took the defense of ex turpi causa non -oritur actio. However, the defendant could not succeed in taking defence; it was held that it was out of proportion of illegal act by claimant side and hence claimant is liable to enforce damages against the defendant.

Inextricably Test: It states that no matter if the act performed by the plaintiff is not an illegal act but it is inextricably linked or closely connected to an illegal act then also the defendant right to defence arises.

Conclusion

Ex turpi causa non-oritur actio provides a determined test and defences available to the defendant. It states that no legal action can be brought by the plaintiff against the defendant where he himself has participated in illegal, illicit and immoral acts. Such maxim is not significant with the law of Tort as the court seeks to provide compensation under tort rather than awarding damages for the criminal act for the profit or gain purpose. However, such a maxim is not applied to agents and trust relations and no action of defence arises.

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Call for Blog: Law Primis

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About the blog

Law Primis is an online platform launched in 2020. Law Primis seeks to spread awareness among individuals from legal backgrounds and individuals interested in the legal field.

Law Primis aims to reach people and increase their understanding of the multifaceted life that is the career and practice of the law. Law Primis seek to be the platform that caters to your needs as an individual interested in this field.

Law Primis brings to the readers quality research, compelling writing and original thoughts from each of our writers.

Law Primis aims to bring research on novel topics. Yes, the platform delivers information but it doesn’t stop at that, it aims for much more. Law Primis seeks to make this complex information interesting for the reader. Law Primis aims to bring change in the way complex legal, and sociological topics are presented.

Theme/topics

Law Primis Blog seeks articles on a rolling basis on contemporary legal issues. Under singular occurrences, we may accept articles which revisit important issues which may have gone dormant, if they provide a unique and novel perspective or have renewed scope for discussion. The contributions must include niche, high- quality interdisciplinary and legal analysis, case laws, legislation and policymaking, and activism. The articles must contain genuine thought of the writers.

About the blog

Law Primis is an online platform launched in 2020. Law Primis seeks to spread awareness among individuals from legal backgrounds and individuals interested in the legal field.

Law Primis aims to reach people and increase their understanding of the multifaceted life that is the career and practice of the law. Law Primis seek to be the platform that caters to your needs as an individual interested in this field.

Law Primis brings to the readers quality research, compelling writing and original thoughts from each of our writers.

Law Primis aims to bring research on novel topics. Yes, the platform delivers information but it doesn’t stop at that, it aims for much more. Law Primis seeks to make this complex information interesting for the reader. Law Primis aims to bring change in the way complex legal, and sociological topics are presented.

Theme/topics

Law Primis Blog seeks articles on a rolling basis on contemporary legal issues. Under singular occurrences, we may accept articles which revisit important issues which may have gone dormant, if they provide a unique and novel perspective or have renewed scope for discussion. The contributions must include niche, high- quality interdisciplinary and legal analysis, case laws, legislation and policymaking, and activism. The articles must contain genuine thought of the writers.

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Fraud or Deceit in Law of Tort

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This article is written by Preeti Bafna, doing BBA L.L.B from Unitedworld School of Law, Karnavati University.

A false or untrue representation of the fact, that is made with the knowledge of its falsity or without the belief in its truth or a reckless statement which may or may not be true, with the intention to induce a person or individual to act independently of it with the result that the person acts on it and suffers damage and harm.

INTRODUCTION

When a person intentionally and knowingly deceives another person into an action that damages them, it is a type of a legal injury that occurs. Deceit specifically requires the tortfeasor to make a factual representation very well knowing of the fact that it is false, or indifferent or reckless about its truthfulness, intending that the other person relies on it, and then act in reliance on it, to his own harm. Under section 421 of the IPC or the Indian Penal Code and 17 of the Indian Contract Act (ICA), fraud is defined.

Essential Elements for the Tort of Deceit

A claimant in deceit must prove the following elements-

False representation- This means that the defendant lied or misrepresented the facts. In [1]Pasley v. Freeman

The plaintiff was dealing in cochineal at the time when the cause of action arose and had a large stock at hand which he anxiously wanted to dispose of.

Learning this the defendant said the plaintiff that he knew a buyer who would purchase the stock of cochineal. The plaintiff asked: “Is he a respectable and substantial person?” “Certainly he is” was the defendant’s reply, knowing well that he was not.

When the bill became due, it turned out that the purchaser was insolvent and the plaintiff was unable to recover his money from the purchaser, the defendant was sued for making a false representation to him by compensating him.

The defendant was held liable to the plaintiff as far as he had suffered as a result of the former’s false statement about that buyer’s credit and character.

Acting on the statement- The defendant made the representation with the intent that the plaintiff should act upon it. In Langridge v. Levy [2]

  • The defendant sold a gun for use by himself and his sons to the plaintiff’s father, representing that the gun was made by a well-known manufacturer and safe to use, the son used the gun that exploded wounding his hand.  
  • It was held that the defendant was liable to the son because there was a contract between them, not on his warranty, but for deceit.

Damage by acting on the statement- That the plaintiff acted in reliance on the statement and suffered damage as a consequence. No action will lie for a false statement unless the plaintiff, in fact, relies upon it.

In Denton v. G.N. Ry. Co. [3]

  • A train that had been taken off was announced as still running in a railway company’s current timetable.
  • This was a misrepresentation and a person had missed an appointment by relying on it and the loss incurred was held to have a deceit action.

Remedies

The tort of deceit is a cause of action that enables the victims to recover the financial loss that has been incurred due to being deceived. These losses can also include the cost of the investigation of the fraud. The four essentials must be fulfilled and the statement must be both false and dishonestly made. The leading authority on this point is still Derry v Peek in which Lord Herschell said:

“First, in order to sustain an action in deceit, there must be proof of fraud and nothing short of that will suffice. Secondly, fraud is proved when it is shown that a false representation has been made (1) knowingly, (2) without belief in its truth, or (3) recklessly, careless whether it is true or false.”

Damages given for Deceit

The claimant is entitled to be put back into the position in which he or she would have been in if the deceit had not taken place. In other words, this means that if, for example, a claimant was led to believe they were buying a property worth Rs. 10,00,000 but the defendant knew that it was only worth Rs. 5,00,000, then the claimant is entitled to damages Rs. 5,00,000 and may claim it. This means that the defendant is liable for all losses directly flowing from their wrongdoing.

In some certain circumstances punitive damages so as to punish the person who defrauded may be levied. These are usually related to the actual losses suffered, the degree of malice and deceit showed.

[1] 100 Eng. Rep. 450 (K.B. 1789)

[2] Meeson & Welsby 519 (1837)

[3] 854 S.W.2d 885 (Tenn. Ct. App. 1993)

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“Vakalat Works E-Youth Parliament ” by Vakalat Works: Apply by 27th July 2020

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Apply latest by: 27th July, 2020

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“Vakalat Works” is an initiative by law students from different law colleges to bring to you all the information related to law and conducts competitions for you all to test your skills and knowledge. Since it is a community of students we expect to flourish with each passing day.

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Smith v. Charles Baker and Sons

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The case analysis is written by Darshika Lodha, a first-year student of Unitedworld School of Law, Karnavati University. In this case, the author briefly explained the case of Smith v. Charles and Sons.

INTRODUCTION

Its main aim is to provide instructions to the reader on how to read a case to define, extract and, where appropriate, apply its decision ratio. For those studying at the Bar have, technically, read several cases at the academic level, and have learned to do so. Yet you might never have given much in-depth consideration to the method of reading the case or determining precisely what the ratio of the case is. Anecdotal evidence also indicates that some have, to a very large degree, made use of case books containing only digests of cases, or merely read the headnote of the case, which provides a brief description of what the author considers to be the case.

Legal Maxim Used

VOLENTI NON-FIT INJURIA

Court

UNITED KINGDOM HOUSE OF LORDS

Date of Judgment

21 JULY 1891

Equivalent Citation

[1891] UKHL 2

Bench

LORD HALSBURY L.C

LORD BRAMWELL

LORD WATSON

Facts

The plaintiff was a contractor hired by the railway constructors of the defendant. While the stones were used, they were raised from the cutting through a crane. The plaintiff got out of the way once he saw that the men were jibing over his head. One of his fellow employees had previously protested to the manager at the plaintiff’s hearing about the danger of slinging stones over their heads, and the plaintiff himself told the crane driver that it was not safe. When he was operating on the drill, a stone dropped on him in the process of being lifted and caused severe injuries. There was no warning that the stone would be jibbed in that direction. The plaintiff’s attention was focused on a hammer, and although, thus, he was unable to take precautions himself, the stone was negligently slung over his head without sufficient care to cause it to fall. At the trial in the county court, the defendant’s counsel argued that the plaintiff had engaged himself in the work on his admission and on his knowledge of the risk. The jury found (1) that the machine used to extract the stones from the cutting as a whole was not sufficiently appropriate for the task for which it was applied; (2) that the failure to provide a means of alarm when the stones were being jibbed was a fault in the method, the job, the machinery and the plate; (3) that the employer or any of the persons employed by the employer to take care of the above-mentioned cases were guilty of negligence in not fixing the defect; and (4) that the plaintiff was not guilty of negligence and did not knowingly engage in risky employment with knowledge of its harm. The appeal to the Court of Appeal was upheld, primarily on the basis that there was no proof of wrongdoing on the part of the defendants. The plaintiff appealed to the House of Lords.

Issues Before the Court

  1. Whether the plaintiff consented to the risk?
  2. Whether there was any evidence of negligence?

Ratio of the Case

In this case, as I have pointed out, there was no notice and no signal, but the employer or his agent employed the plaintiff, in circumstances such as his disability, to use his eyes to defend himself against the danger. It seems to me, therefore, that this is a case in which the plaintiff is entitled to recover, and therefore transfer your Lordships to the judgment of the Court of Appeal. The arrangement between the employer and the employee includes, on the part of the former, the duty to take good care to provide proper equipment and to keep them at unreasonable risk. Whatever the dangers of employment which the employed individual undertakes, the possibility of negligence on the part of the employer, and the development or enhancement of the hazard, must not be counted among them. If then, the employer, therefore, refuses to fulfil his duty towards the working person, I do not think that, if he does not automatically refuse to continue his work, it is valid to suggest that he is willing that his employer will thereby behave towards him. I assume that it would be contrary to the fact that he either accepted or assented to the act or default he spoke of as false, and I do not know of any theory of law which would lead to the inference that the maxim, volenti not-fit injuria, should be appropriate.

Final Judgment

It was held by the House of Lords, in reversing the judgment of the Court of Appeal (Lord Bramwell dissenting), that the mere fact that the plaintiff had endured and proceeded to work with complete knowledge and comprehension of the danger resulting from the deliberate lack of notice did not preclude him from recovering; that the facts should support the finding that the plaintiff did not send a notice.

Conclusion

The ruling of the House of Lords in Smith v. Baker and Sons [1891] was the first case in which the protection of volenti non-fit injuria was limited in the case of employees.  It is a matter of fact, in each case, whether the experience of the complainant in particular circumstances made it so unwise for him to do what he did as constituting negligence on the part of the respondent. If a worker engaged in employment that is not dangerous in itself is exposed to a danger emerging from an action in another department over which he has little control-the danger generated or exacerbated by incompetence on the part of the employer-the mere fact that he undertakes or proceeds to do so with full knowledge and awareness of the danger is not sufficient to prove that he has undertaken to do so. The question of whether he took the risk in this way is a matter of fact and not of law. This applies both to common law and to cases arising under the Employers Liability Act 1880.

International Humanitarian Law and Human Rights

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In this article, Sagnik Chatterjee who is currently in IInd Year pursuing BA.LL.B, from Symbiosis Law School, Pune, discusses about the International Humanitarian Law and Human Rights.

INTRODUCTION

All through these years, it has been agreed globally as that there are certain acts that should be allowed during a war and there are certain acts which should not be not even towards your enemy and this idea laid the foundation stone of the Humanitarian Laws that we see today. 

It is found in old texts of the countries like India, China and many other countries in the middle east that there has always been certain guidelines or principles that were followed when enemy states used to go on a war against each other. Like in India, we find principles like one should not kill his enemy when he(enemy) does not possess any type of arms to protect himself in texts like Ramayana and Mahabharata. Apart from that in “On the Law of War and Peace” by the jurist Hugo Grotius, he laid down certain principles and rules to be followed during a war which included prohibition regarding the use of poison and poisoned weapons, rape and killing of all those in enemy territory – even women and children, and prisoners. 

International Humanitarian Law

International humanitarian law came into existence so that the activities of the countries at war can somehow be regulated in a broad sense to ensure that no matter what basic human rights remain intact even for the enemy personnel if they get caught during the warfare by the opposing country. Now today International humanitarian law can be defined as a set of rules which ensure humanitarian rights, to limit the effects of armed conflict and thus it is also known as the law of war or the law of armed conflict.

Not only this set of rules involve the person who is actually involved directly with the war but it also sets out certain rules to ensure the safety of the civil persons in the country who are not directly involved with the war. International humanitarian law primarily focuses on two areas;

  1. The protection and safety of the civil persons of the countries at war, who are in no way contributing to the war
  2. The guidelines and restrictions to be followed by the countries at war regarding the kinds of weapon used, the way enemy soldiers to be treated if caught during warfare etc.

Human Rights

From the term itself, the meaning is pretty evident, in simple words human rights means the rights which are inherent to all human beings, irrespective of their gender, religion, caste, creed, race, language, religion, nationality or any other attribute human may possess. Few of the prominent human rights are the right to life and liberty, freedom of speech and expression, right to education, right to choose and practice any profession legally and many more.  

Now, these basic inherent human rights have to be implemented in every country around the world and each country has its own way to implement them.  For example, in India inherent human rights are termed as Fundamental rights and those are ensured under the Constitution of India. The notable thing is in modern era international human law binds all the Governments of different countries to make sure they act in certain ways or to refrain from certain acts so that they can ensure and protect human rights and fundamental freedoms of individuals all around the world.

The United Nations so that they can regulate the human rights and ensure that they are protected all around the world created a comprehensive body of human rights law—a universal and internationally protected code to which will bind all the people in the world uniformly irrespective of their gender, religion, caste, creed, race, language, religion, nationality or any other attribute human may possess.  Thus it has successfully established a broad range of rights which includes civil, cultural, economic, political and social rights to be maintained and followed internationally. 

The Charter of the United Nations and the Universal Declaration of Human Rights was accepted by the United Nations General Assembly in 1945 and 1948, respectively and worked as the founding stones of this body.  For the United Nations it worked as an opportunity to expand themselves into fields like specific standards for women, children, persons with disabilities, minorities and other vulnerable groups to ensure growth or development socially, culturally, economically etc. and not only be limited to maintaining peace all around the world. 

International Humanitarian Law and Human Rights Law

If we observe closely we will see that both International Humanitarian Law and Human Rights are closely associated and often leads to legal confusion as both of the primarily deals with the actions taken by the military. One of such major issue caused by the interplay of both of this started with the very first statement of Human Rights when it was sought to be implemented worldwide regarding its stance on dealing with armed conflicts and the threat or the actual use of nuclear weapons in the warfare. 

Now, in determining which laws to be applicable in cases of armed conflict the International Court of Justice ruled that although the International Covenant on Civil and Political Rights mentioned in the Human Rights remains intact even during the war and which in a way protects the one’s life taken arbitrarily during warfare in principle but this law is more of a general in nature or lex generalis and thus it applies to all the possible circumstances in which a person’s life can be threatened, and not specific to the armed conflict situation.

Thus the court settled the issue of the interplay of IHL and human rights law and declared that human rights law is deemed to apply at all times and thus it is a lex generalis, and International Humanitarian Law which mainly comes into the picture when there is an armed conflict and thus it is a lex specialis. In other words, when human rights law and IHL are in conflict, the latter is deemed to prevail, since it was conceived specifically to deal with armed conflict.


Conclusion

To conclude it can be said that although the International Humanitarian Law and the Human Rights are there with the main agenda of maintaining peace in the world and keeping the basic human rights alive. But it is also a normal phenomenon followed in the legal field which is to prevail the specific laws with respect to the general ones according to the circumstances at hand and hence when it comes to armed conflicts the International Human Rights Laws prevail over the Human Rights. 

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Mayor of Bradford Corpn. v. Edward Pickles

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The case analysis is written by Nimisha Mishra, a second-year student of NALSAR University of Law. In this case comment, the author has briefly explained the case of Mayor of Bradford Corpn. v. Edward Pickles. 

INTRODUCTION

The law of tort has two main doctrines namely damnum sine injuria and injuria sine damno. Damages are only payable in tort law when there is a legal injury. Without legal injury, a person who suffered loss cannot claim damages. Even when there is malice present in the actions of the defendant but if there is no legal injury to the plaintiff, the former will not be held liable. 

The entire criminal law is based on the concept of mens rea or mental element of the offender. Mens rea, of the offender, is a state of mind capable of committing a crime. To commit a crime, there should be the presence of bad or malign intention.

However in certain cases mental element is not an essential feature in law in order to safeguard the interest of the people from the trivial actions of the plaintiff.    

Equivalent Citation

[1895] A.C. 587

Bench

Hon’ble Judge Halsbury L.C., Hon’ble Judge Watson, hon’ble Judge Ashbourne, and Hon’ble Judge Macnaghten.

Date of judgement

29th July, 1895

Relevant Act 

Bradford Waterworks Act 1854

Relevant Section

Section 17, Section 18 and Section 49 of Bradford Waterworks Act 1854.

Facts of the case

In this case the owner of the land has water flowing from under his land. 

The mayor of the Bradford Corporation is the owner of the Tropper Farm which is 140 acres in extent. There is a boundary to the west of his farm, adjacent to which the respondent has a land. The respondent, Edward Pickle’s, land happened to be on a higher level than the Tropper Farm. The steep slope of the respondent’s farm is such that strata of the subterranean water underground his land, by the law of gravitation, eventually found its way to the Tropper Farm.

It was an admitted fact that the appellant has not purchased any part of the respondent’s land in the interest whether above or below the ground. In the year 1892, the responded decided to shink the shaft on his land in the view to the working of his minerals. This resulted in the change in the colour of the water as well as the reduction in the level of water. The appellant claimed before the court that the respondent doe not have a bonafide intention to work on minerals. 

Issues presented before the court

  1. Whether the defendant has the right to divert the flow of water under his land, which flows to the land of neighbours. 
  2. Whether the act was done with malicious intent makes the lawful act unlawful?

Ratio of the case

The court stated that no use of the property would be held unlawful if it is promoted by legal actions even though the intent behind them was malicious and illegal. 

Judges were of the opinion that if the plaintiff wants to restrict the actions of the respondent, he must necessarily prove that he has right on the flowing water and the respondent have no right to restrict the flow of the water. After finding all the evidence it was proved that the petitioner did not purchase any part of the land, above or below the land and hence none of the above two contentions could be proved. The landowner has a right to do whatever he wants to do on his land. 

Section 49 of the statute 17 Vict. deals against the illegal diversion, alter or appropriate the flow of water. The learned judge stated that the act of diverting water is unlawful when the water has reached to the premise of the plaintiff. But before that, the respondent cannot be restricted from diverting the direction of the water. In other words, what is prohibited is what belongs to the company. This is a case of damnum sine injuria where even though the damage is caused but unless it is a legal injury, no damages can be given to the plaintiff. If the act done is a lawful act than the state of mind of the defendant is irrelevant. If it is an unlawful act however good his motives are, the defendant has no right to do it. 

The court stated that the company purchase the Trooper Farm and make arrangements accordingly to carry the water from there to its location. Once the Trooper Farm is purchased by the plaintiff it becomes his absolute property and then the defendant has no right to interfere in his property. 

Final decision 

The court after evaluating all the facts concluded that the plaintiff in the given case did not have water as his property till the time it did not come to their land. But once it crosses the land of the plaintiff, he can collect that water and divert its direction. The court further said that even though the defendant’s action was driven by ill motive he is still not liable since his actions were lawful when he diverted the water route. 

The court said that the cited section 49 does not restrict or prohibits the activities of the defendant. Since at the time of passing the act, his actions were legal and hence now he is legally entitled to do what he wants to do in his land. 

The plaintiff should rather purchase the land from which it is making a profit. The court concluded that the defendant was lawfully exercising his rights and therefore he is not liable. And the appeal of the plaintiff was dismissed.

Conclusion

This case is a very accurate example of Damnum sine injuria which means damage without legal injury. There are several cases that comes before the court of law which claims damages for the trivial issues which generally hampers the functioning of the courts. It is very essential to apply the doctrine of Damnum sine injuria in order to safeguard the interest of the defendant from their daily activities. 

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