July 2020 - Page 9 of 17

This article has been written by Niti Shah studying BLS/LLB from Pravin Gandhi College of Law, University of Mumbai.

INTRODUCTION

In the Hindu Religion, nothing has been said about the guardianship of a child whose parents are dead. This was due to the concept of joint families where a child without parents is taken care of by the members of the joint family. Thus no specific laws were needed regarding guardianship.

Definitions

1. Guardian

According to section 4 of the Hindu minority and guardianship act, 1956.“guardian” means a person taking care of a minor or of his property or both person and property, which includes:

natural guardian.
the guardian appointed by the will of the minor’s parents.
a guardian appointed by the court.
a person empowered to act under any enactment relating to the Court of wards.

2. Minor

“Minor means a person who has not completed the age of eighteen years. As per the dictionary, “Minor is a person who is physically and mentally immature and hence needs someone’s protection to take his care.

Types of Guardian

1.Natural Guardian

Firstly, the guardian should be the nearest relative of the minor. So, no other person but the parents when they are alive are the child’s guardian. Between the father and mother, the first claim is given to the father. In the absence of the father, the mother has the next claim. If the parents are dead then the elder brother takes the place.

Hindu Minority and Guardianship Act, 1956 recognizes the natural guardians of the minor legitimate and illegitimate children, both sons, and daughters. The role of the mother as a natural guardian starts from then when the father is dead or otherwise is not capable of acting as a guardian.

Section 7: Natural Guardianship of Adopted Son

The natural guardianship of an adopted son who is a minor during adoption then the first responsibility is on the adoptive father and second responsibility is on the adoptive mother.

Rights of a Natural Guardian

The natural guardian has the following rights :

(a) Right to obtain custody

(b) Right to decide or determine the religion of children,

(c) Right to give proper education,

(d) Right to control the movement of the child

(e) Right to reasonable chastisement

2.Testamentary Guardian

In modem law, another kind of guardian has been recognized it is the testamentary guardian. If in the absence of the parents or natural guardian a minor is given at an improper hand then it becomes a matter of misfortune. So, modem lawgivers have made provisions of appointing a person as a guardian by the father or the mother during their lifetime. Such a guardian is to be appointed by a will. So, the testamentary guardians of a minor are those who are appointed by a will by the natural guardian, entitled to act as a guardian for the minor. A will becomes effective only after the death of the executor.

Guardian Appointed by the Court

When any guardian is appointed by the court, preference was given to relations on the paternal side over the maternal side. For the security of the child, such provisions were incorporated by the lawgivers. This power is currently exercised by the courts under the Guardians and Wards Act, 1890. The guardian appointed by the court is known as a certified guardian. According to Section 13 of the Hindu Minority and Guardianship Act, 1956, within the appointment of a person as guardian of a Hindu minor by a court, the welfare of the minor shall be the most important consideration.

Guardian by Affinity

In pre-1956 Hindu law, there existed a type of guardian called the guardian by affinity. The guardian by affinity means the guardian of a minor widow. The judicial pronouncements have also had the same effect. The guardianship by affinity was taken to its end by the High Court of Allahabad in Paras Ram v. State. During this case, the father-in-law of a minor widow forcibly took away the widow from her house and married her to some unsuitable person only for the sake of money this was also against her wishes. The question before the court was whether the father-in-law was guilty of forcing the girl for marriage and removing her from her house. The Allahabad High Court held that he wasn’t because he was the lawful guardian of the widow.

The question that has arisen before our courts, whether the nearest relative of the husband automatically becomes a guardian of the minor widow on the death of her husband or whether he is merely preferentially entitled to guardianship and thus he cannot act as guardian unless he is the one who has been appointed as such? Paras Ram seems to subscribe to the previous view, and the Madras and the Nagpur high Courts to the latter view. Under Section 13, Hindu Minority and Guardianship Act, in the appointment of ‘any person as guardian, the welfare of the child is a paramount consideration. The fact that under Hindu law father-in-law has preferential right to be appointed as guardian is merely a matter of secondary consideration.

It is very important that after the death of the husband the wife is safe and sound. According to the Hindu Minority and Guardianship Act,1956 t is ensured the wife is safe and sound.

De Facto Guardian

De Facto Guardian is a person who is not a legal guardian, who has no authority in law to act as such but he has assumed, the management of the property of the child and the child as if he were a guardian. De Facto Guardian is a person who takes a continuous vested interest in the life of the child even though he has not been appointed guardian by the court by he assumes himself to be the guardian. He is the one who takes a continuous interest in the welfare of the minor child or the management of the property.

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About the Organizer

LAABh stands for Legal Aid & Awareness for Bhartiya. LAABh is a Non-Profitable Organization which aims to uphold the dignity of a human being. It targets to promote awareness of the rights & duties of citizens to render social justice to the ‘Daridra Narayana’: the deprived.

About the Internship

To carry on with its goal, LAABh is proud to announce its first Legal Research Wing. This wing is going to be responsible for carrying out the research projects undertaken by LAABh.

At the completion of each project, a report will be published by LAABh.

Perks

Stipend for the internship: unpaid
Internship Certificate: After successful completion, a certificate of the internship will be provided.
LOR: In case of exceptional work a Letter of Recommendation will be provided.

Eligibility

Students: A student who is currently in their 3 rd year or above in the 5-year LLB course or a student currently in their final year of a 3-year LLB course.
Also open to scholars and professors of law and Indians and foreign nationals.

Application procedure

Interested students are requested to email their:

Updated CV
Published or Unpublished research paper.
Please indicate if you have any past experience in any of the 2 topics.

E-mail ID: researchwingforlaabh[at]gmail.com with the subject Application for the post of Intern.

Last date to Apply: 5th August 2020

Duration

2 months

The projects will start on the 15th of August 2020. All the work will be done virtually.

Only shortlisted candidates will be called for an interview, prior to their selection.

Note: Please do not call us to repeatedly inquire about results, everyone will be intimated about the same on 14th August 2020.

Number of Positions

3 to 5 interns (the interns will work on both projects).

They are planning to undertake 2 research projects simultaneously. One on the Right to Privacy and the other would be on Health Laws. We aim to come out with a comprehensive report on each of these topics.

Contact Details

Abhishek (Editor-in-Chief for the BLOG)

E-mail ID: researchwingforlaabh[at]gmail.com

About the Fellowship

The Bhumi Fellowship is a full-time paid two-year program designed to develop educational changemakers to lead the next movement in the public education system. Centred around the holistic development of children, the Bhumi fellowship will help you build an ecosystem within the school, to enable school leaders and teachers to equip students with the knowledge, adaptability, and resilience to thrive.

Over two-years, your primary focus will be:

Identifying problems faced by the school or the community and design a robust and sustainable solution
Supporting teachers with innovative teaching methods and building a forum for idea exchange and proof of value
Working actively on improving student learning outcomes by teaching for a minimum of 12-15 hours every week
Improving the leadership skills of school leaders/headmasters

In the process, you will:

Understand the educational ecosystem and facilitate change.
Develop leadership abilities, perseverance, entrepreneurial acumen, and strategic thinking amongst others.
Collaborate with influential changemakers in the educational space.
Build a self-sustaining system of change

Eligibility

Final year students/Graduates between 20 and 30 years of age
Past volunteering or work experience in any field
Passionate about transforming the education system
Fluency in the Tamil Language

Monthly Grant

Selected applicants will receive a monthly grant of Rs 18,000 (taxable). All program relaxed expenses like phone, travel, and stationery will be reimbursed additionally as per policy.

How to Apply?

Interested applicants can apply for the fellowship on http://fellowship.bhumi.ngo/

WEBSITE LINK

https://fellowship.bhumi.ngo/

Application Deadline

July 31, 2020

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ABOUT THE SCHOLARSHIP

Doctoral scholarship will be awarded to registered Ph.D. Scholars from
UGC recognized Indian Universities/ Deemed Universities/ Colleges, IIMs
having University/IIMs approved Ph.D. Programme to pursue and complete
their Doctoral Research in Auditing, Taxation, Commerce, Management
and Accounting Discipline.

The candidates must have confirmed Ph.D. Registration (Research Degree
Committee (RDC) approved) at any of the institutions mentioned above
on the last date of application. It includes the requirements of clearance of
Research Entrance Test (RET).

Eligibility

• Membership of the ICAI with minimum 75% marks/grade in 10th and
12th standard.
• NET/SLET and M Phil from a recognized university will carry weightage
in the assessment of research proposal.
• The scholar should not be more than 40 years of age on the last date
of application.
• Candidates who have already availed UGC Junior Research Fellowship
(JRF)/Rajiv Gandhi National Fellowship (RGNF)/ Maulana Azad National
Fellowship (MANF)/ICSSR/ICAR/CSIR/ICPR/ICMR/ICHR or any such
doctoral fellowship awardees are not eligible to apply.

APPLICATION PROCESS

• Applications are invited through ICAI website, ICAI journal, mass email
to members and should be received before 31st July 2020
• The application along with research proposal & abstract (3000 and 300
words respectively) and all the enclosures, must be sent to: Research
Committee before the last date mentioned in the advertisement duly
signed and stamped by the Ph.D. Registered institution.
Procedure for the award
• Applications are initially scrutinized by the Research Committee
Secretariat
• Thereafter, subject group(s)/Expert Committee(s) will short-list the
meritorious proposals from the eligible applications and thereafter by
the Research Committee of ICAI.
• Such applicants may also be invited for a presentation before an Expert
Committee at ICAI- HO or its COEs/DCOs.
• The recommendations of the Expert Committee will then be placed
before the Research Committee for its final approval.

CONTIGENCY GRANT

• Yearly grant not exceeding Rs. 50000/- per year.
Joining & release of scholars
• The scholar must join the scholarship within four weeks of the date
of the award letter by submitting the required documents through the
affiliating/administering institution. This may be extended by the ICAI up
to six months in deserving cases.
• The sanction of the scholarship will be issued initially for a period of one
year, effective from the date of joining of the scholar in the scholarship.
The renewal of the scholarship for the subsequent year shall be subject
to the receipt of satisfactory annual progress report and at least one
research paper in International Journal of repute and one in ICAI Journal.

JOINING & RELEASE OF SCHOLARS

• The scholar must join the scholarship within four weeks of the date
of the award letter by submitting the required documents through the
affiliating/administering institution. This may be extended by the ICAI up
to six months in deserving cases.
• The sanction of the scholarship will be issued initially for a period of one
year, effective from the date of joining of the scholar in the scholarship.
The renewal of the scholarship for the subsequent year shall be subject
to the receipt of satisfactory annual progress report and at least one
research paper in International Journal of repute and one in ICAI Journal.

SCHOLARSHIP TOPICS

The following topics are suggested

Human Resource Accounting
Simplification of Human Resource Laws
Government Sector Accounting
Integrated Reporting
International Taxation Laws
Water Audit
The Research Committee will decide the suitability of the topics from time to time.

DEADLINE

July 31, 2020

CONTACT

Email: research@icai.in
Phone: 011-30110468

About the organisation

The Nainital Bank Limited is around a century-old Private Sector Scheduled Commercial Bank established in the year 1922 by Bharat Ratna Late Pt. Govind Ballabh Pant and few other prominent personalities of Nainital.

Age Required

22 years to 32 years.

Eligibility

Full time or regular 3/5 years Professional Degree in Law with minimum 60% marks from a recognized University/Institute.
Preference will be given to those candidates who are handling legal matters at corporate/ controlling offices of Banks/Financial Institutions.

Salary

Pay Scale of Rs. 23700-980/7-30560-1145/2-32850-1310/7-42020 plus Special Allowance at 7.75% of Basic Pay + Dearness Allowance thereon (under revision at Industry level). CTC would be approx. Rs. 7.00 lacs per annum.

Application Process

The application, enclosing all prescribed documents should reach the Bank’s Head Office on or before July 21, 2020.

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Guidelines

The candidates applying for the post/s mentioned above must submit their duly typed application by Registered/ Speed Post addressed to ‘The Vice President (HRM), The Nainital Bank Limited, Head Office, 7 Oaks Building, Mallital, Nainital-263001 (Uttarakhand)’ in the prescribed format.
Application fees: Rs. 1000.00 (Rupees one thousand only) including GST which should be remitted through Demand Draft in favor of the Nainital Bank Limited payable at Nainital (Uttarakhand) and the same should be attached with the application.
The envelope containing the application should be super-scribed with ‘Application for Post of________________ (Mention name of the post for which applied).

Deadline

21st July 2020

Contact Details

The Nainital Bank Limited, 4th Floor, UPRNN Building, C-20/1A/7, Sector 62, Noida, Uttar Pradesh – 201309

Phone number: 120-2401083

About Lexstructor

Lexstructor is an online, open-access legal news, and journal publication platform which is dedicated to express views on varied legal issues, thereby generating diversified research emerging areas. Lexstructor has secured 45 th rank under the list of top 100 Indian Law Blogs, powered by Lexstructor. This platform shall encourage the intent of young law students, professionals and members of academia to contribute to the field of law and its relation with various aspects of technology, policymaking, management and other dimensions of academia. It provides free access to legal knowledge and daily legal updates to everyone irrespective of a lawman or layman. Within a short period of time, Lexstructor has
successfully gained 10,000+ views on its website and a large number of followers on our social media sites.

About the Competition

Lexstructor is pleased to announce the online blog writing competition on International Humanitarian Law in the month of August 2020.

Theme of the Blog Writing Competition

Any contemporary issues falling under the ambit of International Humanitarian Law

Rules of the Competition:

Word Limit : 1500 words maximum (excluding citations)
Citations must be provided in the form of Endnotes
Blog article must be original and unpublished
Submission of the blog without the registration would be considered invalid
While submitting the blog, the cover page must include your name, designation,
institute/organization and contact details.

Eligibility

Law Students, Legal Professionals and students/professionals from other domain having a keen interest in International Humanitarian Law

Important Dates

 Register by Aug 10, 2020
 Submit your blog by Aug 20,2020 (No Extension Will Be Granted)
 Declaration of Result – Aug 27, 2020

Prizes

1 st Prize – Rs. 700/- + Virtual Internship under All India Human Rights Association
(AIHRA) + Certificate of Merit + Publication of your blog on our website
2 nd Prize – Rs. 300/- + Virtual Internship under All India Human Rights Association
(AIHRA) + Certificate of Merit + Publication of your blog on our website
3 rd Prize – Rs. 700/- + Virtual Internship under Youth for Human Rights India (YHRI) +
Certificate of Merit + Publication of your blog on our website
4 th Prize –Virtual Internship under briefCASED + Certificate of Participation
5 th Prize –Virtual Internship under Lex Peeps+ Certificate of Participation
6 th Prize –Virtual Internship under Lex Peeps+ Certificate of Participation
Other participants will also receive a Certificate of Participation
Application Procedure
Interested students can apply through :
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This Article is written by Akanksha Chowdhury from Amity University Kolkata. The article talks about Liquidated and Unliquidated Damages along with various case laws dealing under it. It also talks about advantages which are there in both these damages along with provisions of breach.

INTRODUCTION

At common law, damages are a remedy in the form of a monetary award to be paid to claimant as compensation for loss or injury. The damage must involve damages to property, or mental or physical injury etc. A court usually gives the amount that will help to restore the injured party to the economic position they expected from the performance of the promise or promises on a breach of contract by a defendant. Liquidated damages are meant as a fair representation of losses in a situation where actual damages are difficult to ascertain. Unliquidated damages are a type of compensation that is considered at large which means that the amount is not stated when a contract is established, instead these damages are determined by a judge or jury in a court.

Types of Damages

General and Special Damages –

Any damage that emerges in the natural course of events is known as general damages while damages that emerge under any circumstance and were already expected is called special damages.

Nominal Damages

These are damages that are awarded to the plaintiff in cases where the court decides that the plaintiff suffered a legal wrong but no real financial loss as such.

Punitive damages

These damages are not fixed by law, the judge and jury may award at its discretion whatever sum is believed necessary to redress the wrong, also a Jude can remit these damages if they consider it to be excessive.

Liquidated and Unliquidated damages

In the case of contracts, parties might agree to pay a certain amount on breach of the contract. When such provisions are present in the contract they are known as liquidated damages while damages that are given by the courts on basis of assessments of the loss or injury caused to the party suffering such breach of contract, they are called unliquidated damages.

Breach of Contract

Before understanding what breach of contract is all about. So, when one party infringes any of the provisions of a contract in a manner due to which the other party has to face losses then it is considered to be a breach of contract however before a breach of contract can be noticed there are few conditions have to be fulfilled such as –

> The contract should be valid which means there should be offer, acceptance, capacity to contract etc.

>A plaintiff who claims damage has to prove to the court that the defendant has breached the contract.

>The plaintiff should have fulfilled his part of the contract

Liquidated Damages

As per black law, before entering into any contract the parties decide an amount of money which has to be paid by the one who performs breach of contract this is termed as liquidated damage.

In India liquidated damages is covered under section 73and 74 of the Indian Contract Act.

Section 73 – This section deals with compensation for loss or damage that is caused by breach of contract. When any contract is broken the party, who is responsible for it has to pay certain compensation to the other party. Such kind of compensation is however not to be given for any remote and indirect loss or damage sustained by reason of breach.

Example – Suppose B get into a contract for selling and delivering 10 kg of rice to C however soon he breaks his promise, due to which now C is entitled to compensation from B for the loss he faced.

Section 74 – According to this section if a contract is broken and a sum is mentioned in the contract for any breach that might be caused later then the party is entitled to it whether or not actual damages are proved.

Example – Suppose A borrows Rs 500 from B and gives him a bond for rupees 600 which will be payable through instalments now if he fails to do it, he has to pay the whole money (rupees 500)that is due to B.

Prerequisites to Claim Liquidated Damages

Breach of contract – It is necessary for claiming of damages, so until and unless there is any breach of contract no compensation can be awarded to any of the parties also damages can be claimed in the case of anticipatory breach of contract.

Causal link – There must be a link between the breach that is committed and the loss suffered for a claim of damage, however if this is absent then compensation cannot be awarded.

Proof of damage – There should be a proof of damage or loss or injury present otherwise the compensation cannot be awarded for claiming of liquidated damages.

Unliquidated Damages

Damages that are claimed for unforeseeable loss are known as unliquidated damages, however determining the exact amount for compensation is a bit difficult in this case since the amount is unliquidated. For awarding these damages the court takes a compensatory approach such as it tries to restore the loss sustained by the plaintiff, help the plaintiff in getting back to its previous position, avoid penalization of the defendant in any manner.

The main motive behind these damages is that it helps pries suffering from a breach of contract to demand for damages for unforeseen losses, however certain requirements are to be fulfilled without which compensation cannot be provided. It is extremely necessary for including a provision for unliquidated damages in a contract as it helps the parties to recover those losses which are not possible to estimate , also the problem with this type of unliquidated damage is that the party claiming it has to prove that the loss is due to the breach of contract .

However, if a party was aware that there might be certain unforeseen events which may cause problem in performance of the contract and still did not take any step for stopping it then damages cannot be awarded.

Case laws

Fateh Chand v. Bal Kishan Das

In this case provision was eliminated under English law which was in relation of the difference between payment of liquidated damages and stipulation penalty. The Supreme Court has held that the effected party was entitled to a certain compensation which should not exceed a particular sum of penalty or re discussed amount which had to be paid after breach of contract. The court also mentioned that the usage of all these provisions was not particularly confined to some cases in which the effected party comes to the court for seeking relief.

In the following case section 74 was interpreted on the basis of either predetermined agreement compensation or penalty.

ONGC vs Saw Pipes Limited

In this particular Supreme Court had held that in case of any sort of damage with respect to section 73 and 74 and has to be read together and the damages which are liquidated I nature has to be granted in those cases whereby it is very much difficult to prove the exact loss or damage which has been incurred as per the fact that it should be a type of reasonable compensation but in cases of deciding compensation the terms and conditions should be taken into proper consideration .

J.B. Ross and Co. vs C.R. Scriven and Ors.

In this case, the court had given the judgement in favor of the plaintiffs with reference to the right of unliquidated damages that arose upon a certain breach of contract between the plaintiffs and the defendant. The damages which were claimed by the plaintiffs were actually based on a rule that was ordinary in nature i.e. the difference between ordinary price and the market price during the time of contract made. The problem which arose over here was that the defendants did not make timely appearance with respect to the provision that was clearly mentioned in the contract and duly signed by them.

Conclusion

In order to conclude, I would like to say that there are certain advantages of both these damages. In a provision for unliquidated damages, the contract made will mostly prove to be a bigger advantage. The particular contract will help in recovering the losses by the client which were earlier a breach in the contract, unforeseen or even really very tough to estimate about it. The fact over here is that it originally results in contractor to have a liability that is fully unknown. Adding to this, the client has the obligation so as to remove his or her actual loss during the breach.

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This article is written by Anushka Singh, a second year student, pursuing BBA-LLB at Unitedworld School of Law, Karnavati University. This article aims to explain the term specific performance under the Specific Relief Act, 1963.

INTRODUCTION

The Specific Relief Act 1963 came in to force on 1^st March, 1964. This act is an amended version of the previously repealed, Specific Relief Act 1877. This act was enacted in order to define the laws regarding the specific performance of contracts when the compensation awarded is not enough. It gave discretionary powers to concerned courts to provide specific performance as a relief when needed. However, recently this act did not seem to be up to date with the growth of the country and was amended. Consequently, the Specific Relief (Amendment) Bill, 2017 was passed by Lok Sabha and Rajya Sabha, on 15^th March 2018 and 23^rd July 2018 respectively. The amended version only allows the courts to award specific performance as a rule and ensure that it is enforced.

Specific Performance

Specific performance is offered by the court, in which a party must perform a specific action as outlined in the existing contract. As a rule, the relief of specific performance is allowed only when there is no other relief that will meet the circumstances of the case. Specific performance is usually ordered in cases where damages won’t be enough to remedy the situation. But for the court to order this exceptional remedy the plaintiff must first prove that the normal remedy of damages is insufficient. The presumption here is that the cases in the contract for the transfer of immovable property, damages will not be enough.

Therefore, specific performance will not be granted when compensation is enough relief. These include the following scenarios, where money won’t provide sufficient relief-

When the subject of the contract is an immovable property or a movable property,
And such properties or goods are not an ordinary article of commerce i.e. which could be sold or purchased in the market.
The article holds a special value or attention of the plaintiff or is not easily available in the market.
The property or goods held by the defendant as an agent of the plaintiff.

Section 10 of the Specific Relief Act, 1963 sheds light on the conditions for specific performance of contracts and can be enforced by the provisions contained in sub-section (2) of section 11, section 14 and section 13.

Contracts which cannot be Specifically Enforced

Contracts in which money is enough compensation. In this scenario, the court does not order specific performance of the contract as the remedy of compensation is enough for the damage caused by the breach or non-performance of the contract.
Contract which requires continuous supervision. These require constant surveillance and supervision which may not be possible for courts to provide.
When a contract is so dependent on the personal qualification the parties that the court cannot ensure the specific performance of its material terms. Or where performance is dependent on the minute details of the contract.
Contracts of determinable nature. These are contracts which can be revoked or put an end to by a party in the contract. For instance- a partnership in a firm.

Persons against whom Contract can be Specifically Enforced

The persons against whom contracts can be specifically be enforced are listed in section 15 of the act. They are-

Any person party to a contractor suit.
When the aim of the contract is to settle a marriage or a dispute between family members.
Contract with a tenant as a party over a property for life.
Representative in interest, which holds certain important ingredients-

Any extra ordinary skill or qualification.
The principal in interest shall not be entitled to specific performance.

Case Laws

Ram Karan v. Govind Lal, in this case, an agreement for the sale of land was communicated. The buyer then went ahead and paid the full consideration to the seller. But after securing the payment the seller refused to execute the sales deed as per the agreement. The buyer filed a suit seeking specific performance of the said contract. The court held that in this case compensation by the way of money would not be enough and the seller was instructed to execute the sale deed in favour of the buyer.

The Supreme Court in 2018, in the case of Sucha Singh Sodhi v. Baldev Raj Walia (Civil Appeal No. 3777 of 2018) held that specific performance and permanent/temporary injunction cannot be claimed in one suit.

In the case of Geeta Rani Paul v. Dibyendu Kundu, the apex court held that when a plaintiff files a suit about dispossession, if he can prove that he is entitled to that property it will be enough and other slight matters such as being divested from the property will not be needed to prove.

The Kerala High Court in 2017 held that a plaintiff is eligible to specific performance of a contract only if the original terms of the contract remain unchanged. Any variation in terms of the contract, including ones for the benefit of the defendant will make the plaintiff ineligible for specific performance.

CONCLUSION

Commercial activities in India like foreign direct investments, infrastructure developments, public-private partnerships, etc. are taking place daily in huge numbers. Making the Specific Relief Act, 1963 a highly crucial legislation. And there are only a few legal remedies a party may consider when another party has breached the contract or not performed. Certain times in these cases the monetary values recovered are not enough to remedy the damage suffered by the plaintiff. In this scenario-specific performance comes into play. It is mentioned in section 10 of the said act. The decision of specific performance is largely left to the courts. However, for a plaintiff to be eligible for this remedy, he must prove that the regular remedy was not enough to compensate him to the court.

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This article has been written by Shivani Kumari, a first-year law student of Lloyd law college. In this article, the author has researched an important field of tort- “Is the employer vicariously liable for the acts of the independent contractor”

INTRODUCTION

Whenever a person does or omits to do any act and if this act or omission cause any injury to the other person, the first person will be held liable for the injuries done to the second person. It is because there is a legal duty of every person to protect the legal rights of others. This is known as a tort. A tort is a civil wrong and its liability arises from a breach to duty toward another person and such breach is redressible by an action for unliquidated damages i.e. not prefixed.

Vicarious Liability

It is generally known that whenever a person commits wrong (infringes on the rights of others), the person is liable for a tort. But there is some exception to the general rule because in some special cases a person may be held liable for the tort committed by another. Vicarious liability is a civil wrong where one person is held liable for the acts of another. The basis of the rule has been variously stated: on the maxim Respondeat Superior which means Let the principal be liable or on the maxim Qui facit per alium facit per se which means he who does an act through another is deemed to do it himself. This liability arises only if there is a relationship between the two persons. The relationship must be either of (a) principal-agent, (b) master-servant, or (c) partners in a partnership firm. There are mainly three requirements for a claim in vicarious liability-

1. There must be a tort

It means that there must be some act or omission done by one which infringes on the rights of another.

2. Tort must be committed by the defendant’s employee

Vicarious liability is one in which employers are held liable for the action of their employees. So the wrong here, must be committed by the employee and not the employer. It is also important here that the employee is working under the control of the employer and the employer must be able to hire and fire his employee.

3. It should be committed in the course of his employment:

The employer is legally responsible for the damages if the employee caused them while performing a job.

For instance, If Y is a driver of X and his duration of work is 10 a.m to 6 p.m. and after that Y goes to his house and beats his wife at night, then X is not responsible for the same, because Y is not in his course of employment.

Employer and Employee Relationship

For an employer to be held vicariously liable for the act done by his employee, there must be a relationship between the two. This can be bagged by certain tests to check whether there is an established employer-employee relationship.

1. The control test

The traditional test, that is used for an employment relationship is one of control. In the case of Cassidy v ministry of health, it was held that this test checks the versatility of an employer that whether he controls (a) what his employee does (b) how he does it or both. This test was formulated upon the social conditions and can govern the relationship between a household and servant, farmer and agricultural labourer, etc. This test is no longer appropriate because it cannot be applied to skilled labourers/employees.

2. Contract of service

It represents the employer and employee relationship. It defines the contractual obligation between two parties (It can be held between a business and an independent contractor). This test ensures that there is a legal relationship between the two and no one can withdraw himself after the wrong done.

3. Hire and fire test

This test is done to check whether the employer is in a position or has the authority to hire and fire his employee. If an employer has the authority to do this then, he would be liable for the acts done by his employee.

4. Mode of compensation

The mode of compensation is one of the most important criteria to distinguish whether he is an independent contractor or servant. Payment to an independent contractor is done after the completion of assigned work whereas a servant gets compensation on a periodical basis.

5. Nature of work

Works assigned to independent contractors are particularly time- based and they bring their tools to complete their work whereas employees and servants get all the necessary facilities by their employer.

Independent Contractor

An independent contractor is an individual who works for another individual (employer). He is not subject to any control over him by the employer (principal or master). He is his master. An independent contractor exercises his duties at his discretion. An independent contractor undertakes to produce a given result, but in the execution of that work, he is not under the order and control of the person to whom he is giving the service. Generally, a contractor supervises the worker community and compensates them for their service.

For instance – builders, cab drivers, etc.

Difference between an Independent Contractor and Servant

A servant is a person employed by another to do work under the discretion and control of his master. Whereas, an independent contractor is a person employed by another to do work under the discretion of himself. He is the master of himself. He controls all his works. A master can have a check on the work and the method adopted to complete that work of a servant but he cannot check the same of an independent contractor.

For instance – My truck driver is my servant. If he negligently knocks down someone in his course of employment then I will be responsible for that. If I hire a driver from a transport company and if he negligently knocks down someone, then I will not be responsible for that.

Employer and Independent Contractor

Where an employer is liable for the acts an independent contractor

An employer is vicariously liable for the torts of an independent contractor committed in the course of their employment. There are certain situations in which the liability of an employer arises in the case of an independent contractor. Some of these are as follows-

When an employer authorizes him to do a tort

This situation arises when an employer hires an independent contractor to do some work and in the course of that work, he(employer) authorizes him(contractor) to do some wrong act which somehow constitutes a tort.

For instance- If a person hires a cab for reaching railway station and in the course of traveling, he forces the driver to run the cab faster and faster and if this leads to any road accident then, the passenger would be held liable for that because he authorizes the work to the driver.

In the tort of strict liability

The case of Strict liability was established with the very famous case of Ryland v. Fletcher, in this case, the defendant employed an independent contractor to construct a reservoir on their land. While digging the land the contractor founds some shafts but he didn’t bother to seal them properly. When the water was filled in the reservoir, water flooded the mine shafts into the plaintiff’s mines on the adjoining property. It was held in this case that the defendant is liable for the acts of the contractor and hence established the rule of strict liability. The main elements of this rule are-

The defendant must bring some dangerous thing into his land (non- natural use of land)
The thing escapes from that place
Escaped thing cause some harm to the plaintiff

So, if any independent contractor do something like above mentioned then the employer will be held liable for the same. Some of the defenses to this rule are Consent of the plaintiff, Common benefit, Act of the third party, Act of God (unforeseen event), Statutory authority

Negligence of independent contractor

In this situation, the employer is held liable for the negligent act/omission committed by their employees in the due course of employment. It also includes the “collateral negligence” of both the employer and the employee.

For instance– If a contractor is appointed to construct a building and he( his workers) negligently leave something (tool) in the window case and the heavy wind blew the window open and that tool fell hurting some passerby, then the employer will also be liable for the negligent act of the employee.

Where an employer is not liable for the acts of an independent contractor

An employer is not liable for the tort of an independent contractor if he has taken care of while appointing a contractor. If a reasonable person takes due diligence and avoids every foreseen situation with care then he will not be held liable for any action of tort.

For instance-In Philips v. Britania Hygienic Laundry Co. (1923), the owner of the lorry was held not liable when a third-party’s vehicle was damaged, in consequence of the negligent repair of his lorry by a garage proprietor.

CONCLUSION

To sum it up, it can now be well established that vicarious liability is a tort in which one person is held liable for the actions of another and an independent contractor is one who works for another but with his discretion. So an employer is held vicariously liable for an independent contractor if they are negligent in performing their work, in case of strict liability, and when the employer authorizes the work to the contractor. But, if the employer will take all the necessary care in appointing the contractor then he will not be held liable for any tort.

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ABOUT THE ORGANIZER

The Law Club and The School of Law & Governance, Vishwakarma University, Pune are jointly organising the ‘National Online Elocution & Article Writing Competition’ on ‘Emerging Legal Issues in AI-driven Bharat’. We are inviting the multi-skilled and adept scholars of the various venerated institution to participate in this event.

AIM OF THE EVENT

This event aims to bring out the oratory and analytical abilities of our participants and give them a platform to display their inherent talent

HIGHLIGHTS

a) Legendary Luminaries as Judges for Competitions
b) Online Internship Opportunity and Free Certificate Course for the winners
c) Free Publication of articles on the official website of The Law Club.
d) Other Exciting prizes

THEME

Emerging Legal Issues in AI-Driven Bharat

SUB THEME

Artificial Intelligence & its Criminal Accountability
Legal Personality of Artificial Intelligence
Artificial Intelligence & Legal Framework in Bharat
Artificial Intelligence & National Security Challenges
Artificial Intelligence & Digital literacy
Artificial Intelligence & Data Privacy
Artificial Intelligence & Contractual protections
Changing definition of ‘Consent’ in AI-driven Bharat
Need for expansion of Patent Laws for Prototypes and Algorithms
Exploring ethical and policy implications of Artificial Intelligence

Eligibility:

All undergraduate students of LL.B 3 years and 5 years course

Registration Procedure:

For registration, pay the registration fees according to the below mentioned
details.
▪ Take the screenshot of the successful payment receipt.
▪ Fill in the registration form with your details and upload the payment receipt in the form and submit.
▪ Click on the link to register: https://forms.gle/tTZSvAMaG5Lnx1hK7

Fee Details:

▪ Rs. 200/- for Elocution and
▪ Rs. 150/- for Article Writing Competition.

The participants can pay the registration fees via Paytm or Google Pay
Paytm: 8275160241@paytm Google Pay: supriyapathak.1104@oksbi

Important Dates:

▪ Last date of registration for both the competitions: – 17th July 2020
▪ Online Elocution Competition:- 18th and 19th July 2020
▪ Last date of submission of Article:- 25th July 2020

Contact Info:

For any further queries please contact:
▪ Adv. Rucha Dhakras (Coordinator- The Law Club)
Contact no.: 07507060004
▪ Deepshikha Sharma (Professor- Vishwakarma University, Pune)
Contact no.: 08806378695
▪ Email ID: thelawclubgroup@gmail.com