V BBM B' Business Law Class

V BBM ‘B’ BUSINESS LAW CLASS
CONTENTS
1. Introduction to Business Laws
2. Indian Contract Act, 1872
3. Patent Act, 1970
4. Trade & Merchandise Marks Act, 1958
5. Copyright Act, 1957
6. Consumer (Protection) Act, 1986
7. Foreign Exchange Management Act, 1999
8. Information Technology Act, 2000
9. Environment Protection Act
10.Competition Act, 2002
Module I.
BUSINESS LAWS
What is law ?
1. A citizen may think of ‘law’
as a set of rules which he must obey.
2. A lawyer who practices ‘ law’ may think of law as a
vocation.
3. A legislator may look at ‘law’
as a something created by him.
4. A judge may think of ‘law’
as a guiding principles to be applied in making decisions.
Law
• Law includes all those rules and

regulations which regulate our
relations with other individuals and
with the state.
Definition of Law by Salmond
• “ Law is ………………
…the body of principles recognized and
applied by the State in the
administration of the justice ”.
Object of law
• The object of law is order, and the result of

order is that men are enabled to look ahead
with some sort of security as to the future.
Need for the knowledge of law
• ‘Ignorantia juris non excusat’

is a familiar maxim. This means
ignorance of law is not excusable.
The law now a days is a matter of great intricacy.
As such no sound business man would attempt to solve
important legal questions affecting his business
interest without expert legal advice.
BUSINESS LAWS
• Business laws are those laws which

regulate the conduct of the businesses.
Sources of Business Law
• 1.English Mercantile Law

• 2.The Statute Law
• 3.The Case Law
• 4.The Common Law
• 5.Customs and Usages
Module: II
Law of Contract
• The law of contract is regulated by Indian Contract Act,

1872
OBJECT OF THE LAW OF CONTRACT
The law of contract is that branch of law which determines
the circumstances in which promises made by the parties
to a contract shall be legally binding on them.
In simple words, the purpose of law of contract is to ensure
the realization of reasonable expectation of the parties
who enter in to contract.
OBJECT OF LAW OF CONTRACT
• According to Sir William Anson,

The law of contract is intended to ensure that,
‘what a man has been led to expect shall come to
pass, and that what has been promised to him
shall be performed.
‘JUS IN REM’ &
‘JUS IN PERSONAM’
Law of contract creates,

‘jus in rem’ and ‘jus in personam’.
• ‘Jus in rem’ means,
right against the world at large.
‘jus in personam’ means,
the right against particular persons.
Definition of Contract
• Section 2(h) of Indian Contract Act, 1872

defines a contract as ……..
“An agreement enforceable by law”.
So, a contract is an agreement made between two or
more parties which the law will enforce.
CONTRACT
• An agreement enforceable by law is a

contract.
Contract = Agreement + Enforceability
Agreement = Offer + Acceptance
An agreement is defined as,
“every promise and set of promises, forming
consideration for each other” [Sec2(e)].
Definition of Promise
• A promise is defined thus:

“When the person to whom the proposal is made
signifies his assent there to, the proposal is said to be
accepted.
A proposal, when accepted, becomes a promise.”
[Section 2(b)].
An agreement is an accepted proposal.
Consensus ad idem
• The essence of an agreement is meeting of the minds of
the parties.There must in fact, be consensus ad idem.
• Eg., A, (owns two horses named Rajhans &
Hansraj), is selling horse Rajhans to B.
B thinks he is purchasing Hansraj.
There is no consensus ad idem consequently no
contract.
Obligation
• An agreement, to become a contract, must give rise to a legal

obligation or duty.
• An obligation is a legal tie which imposes upon a definite
person or persons the necessity of doing or abstaining from
doing a definite act or acts.
Ex. A agrees to sell his car to B for Rs.1,00,000/-.The
agreement gives rise to an obligation on the part of A to
deliver the car to B on the part of B to pay Rs.1,00,000/-
to A. This agreement is a contract.
Obligation
• An agreement which gives rise to social obligation is not a

contract .
• An agreement is a wider term.
• An agreement may be a social agreement or a legal
agreement.
• If A invites B to a dinner and B accepts the invitation, it is
a social agreement.
Obligation
• A social agreement does not give rise to contractual

obligations and is not enforceable in a Court of law.
• It is only those agreements which are enforceable in a court of
law which are contracts.
• A father promises to pay his son Rs.100/- every month as
pocket allowance. Later he refuses to pay.
The son cannot recover as it is a domestic agreement and
there is no intention on the part of the parties to create legal
relations.
All contracts are agreements, but all agreements are
not necessarily contracts
• ESSENTIALS OF A VALID CONTRACT:
1. Offer and Acceptance
2. Intention to create legal relationship
3. Lawful consideration
4. Capacity of parties-Competency
5. Free and genuine consent
6. Lawful object
7. Agreement not declared void
8. Certainty and possibility of performance
9. Legal formalities
ESSENTIALS OF A VALID CONTRACT:
1.Offer and Acceptance:

There must be two parties to an agreement, i.e.,
one party making the offer and the other
accepting it . The terms of the offer must be
definite and the acceptance of the must be
absolute and unconditional. The acceptance
must also be according to the mode prescribed.
• 2.Intention to create legal relationship:

When two parties enter into an agreement, their intention
must be to create legal relationship between them .If there is
no intention on the part of the parties, there is no contract
between them.
E g., A husband promised to pay his wife a house hold
allowance of 30 pounds every month .Later the parties
separated an the husband failed to pay the amount. The wife
sued for the allowance .Held, the agreement such as these were
outside the realm of contract altogether
[Balfour vs.Balfour,1919].
• 3. Lawful consideration :
An agreement to be enforceable by law must be supported by
consideration.
‘Consideration’ means advantage or benefit moving from one
party to the other . It is the essence of a bargain.
In simple words, it means ‘something in return’.
A promise to do something and, getting nothing in return is
usually not enforceable by law.
Consideration need not be in cash or kind.
It may be an act or abstinence.
• 4.Capacity of parties-Competency:
The parties to the agreement must be capable of entering in to a
valid contract.
Every person is competent to contract if he,
(a) is of the age of majority,
(b) is of sound mind, and
© is not disqualified from contracting by any law to which he is subject.
The flaw in capacity to contract may arise from minority, lunacy, idiocy,
drunkenness, etc.
• 5.Free and genuine consent:

It is essential to the creation of every contract that there must be
free and genuine consent of the parties to the agreement.
The parties are said to be of the same mind when they agree
about the subject matter of the contract in the same sense and
at the same time(Sec.13).
There is absence of free consent if the agreement is induced by
coercion, undue influence, fraud, misrepresentation, etc.
(Sec.14).
• 6.Lawful object:
The object of the agreement must be lawful.In other
words, it means that the object must not be (a)
illegal, (b) immoral, or © opposed to public
policy(Sec.23)
If an agreement suffers from any legal flaw, it would
not be enforceable by law.
7. Agreement not declared void:

The agreement must not have been expressly
declared void by law in force in the country.
A void agreement is one which is not enforceable
by law.
8. Certainty and possibility of performance:

The agreement must be certain and not vague or
indefinite (Sec.29).
If it is vague and if it is not possible to ascertain it’s
meaning, it cannot be enforced.
Ex. ‘A’ agrees to sell to ‘B’ “a hundred tons of oil”.
There is nothing whatever to show what kind of oil was
intended. The agreement is void.
• 9.Legal formalities:
A contract may be made by words spoken or written.
As regards the legal effects, there is no difference between
a contract in writing and a contract made by word of
mouth.
It is however in the interest of the parties that the
contract should be in writing.
In some other cases, a contract, besides being a written
one, has to be registered.
Classification
of Contracts
Contracts may be classified according to,
1.Validity 2.Formation, and 3.Performance
VALIDITY FORMATION PERFORMANCE
1.Voidable Contract [2(i)] 1.Express Contract [9] 1.Executed Contract
2.Void Agreement [2(g)] 2.Implied Contract [9] 2.Executory Contract
3.Void Contract [2(j)] 3.Quasi Contract 3.Unilateral Contract
4.Illegal Agreement 4.Bilateral Contract
5.Unenforceable Contract
1.Classification according to ‘Validity’
• i] Voidable contract: An agreement which is

enforceable by law at the option of one party but
not at the option of the other or others is a
voidable contract [Sec.2(i)].
The party whose consent is not free may
either rescind (avoid or repudiate) the
contract, if he so desires, or elect to be
bound by it.
A voidable contract continues to be valid till it is
avoided by the party entitled to do so.
Classification of Contract………
• Example of Voidable Contract: A promises to

sell his car to B for Rs 2000. His consent is
obtained by use of force.The contract is
voidable at the option of A .
• He may avoid the contract or elect to be bound by it.
Classification of Contract………
• ii] Void Agreement: An agreement not

enforceable by law is said to be void
[Sec.2(g)].
• E.g., An agreement with a minor or an
agreement without consideration.
Cont’d…..
• iii] Void Contract:A contract which ceases to be

enforceable by law is a void contract. [2 (j)].
• E.g., A contract to import goods becomes void, when
war breaks out between the countries.
Cont’d…..
• iv] Illegal Agreement: An illegal agreement is one

which transgresses the public policy or which
is criminal in nature or which is immoral.
• E g.,An agreement to import prohibited goods.
All illegal agreements are void but all void
agreements are not necessarily illegal.
Cont’d…
• ………….Illegal Agreement:
• An illegal agreement is not only void as between the
parties but has this further effect that even the
collateral transactions to it become tainted with
illegality.
A collateral transaction is one which is subsidiary,
incidental or auxiliary to the principal or original
contract.
Cont’d……..
• v] Unenforceable Contract:
• An unenforceable Contract is one which cannot be
enforced in a Court of law because of some technical
defect such as absence of writing or where the
remedy has been barred by lapse of time.
The contract may be carried out by the parties
concerned; but in the event of breach or repudiation of such a
contract, the aggrieved party will not be entitled to the legal
remedies.
2.Classification according to ‘Formation’
• A contract may be (a) made in writing or by word of mouth, or

(b) inferred from the conduct of the parties or circumstances
of the cases.These are the modes of formation of contract.
• On the basis of ‘ Formation’ Contract can be
classified as,
(i) Express Contract, (ii) Implied Contract, &
(iii) Quasi Contract.
Cont’d…….
(i) EXPRESS CONTRACT: If the terms and conditions of

contracts are expressly agreed upon (whether words
spoken or written) at the time of formation of
contract, the contract is said to be ‘Express Contract
’.
(ii) IMPLIED CONTRACT: One which is inferred from the
acts or conduct of the parties or course of dealings
between them.
An implied contract is one which is not an express
contract.
Contracts ………classified.
(iii)QUASI CONTRACT: Strictly speaking Quasi Contract

is not a contract at all.
A contract is intentionally entered in to by the
parties.
A quasi contract, on the other hand is created by
law. It rests on the ground of equity that, “ a
person shall not be allowed to enrich himself
unjustly at the expense of another ”.
III. Classification according to ‘Performance’
• (i) Executed Contract

(ii) Executory Contract
-Unilateral or One-sided Contract
-Bilateral Contract
….. Classification according to ‘Performance’
(I) EXECUTED CONTRACT:

‘Executed’ means that which is done.
An executed contract is one in which both the parties have performed
their respective obligations.
(ii) EXECUTORY CONTRACT:
‘Executory’ means that which remains to be carried in to effect. A
contract may be partly executed and partly executory.
• ONE-SIDED OR UNILATERAL CONTRACT
Performance of only one party is outstanding.
• BILATERAL CONTRACT.
Performance of both the parties remains outstanding.
CASE 1.
• Over a cup of tea in a restaurant, A invites B
for a dinner at his house on a Sunday. B hires a
taxi and reaches A’s house at the appointed
time, but A fails to perform his promise.
Can B recover any damage …???
VERDICT OF CASE 1.
• No. [Balfour V. Balfour,1919]
• A husband promised o pay his wife a household
allowance of 30 sterling pounds every month.
• Later the parties separated and the husband failed to
pay the amount. The wife sued for the allowance.
Held, agreement such as these were outside the realm
of contract altogether.
CASE 2.
• (a) A engages B for a certain work and
promises to pay such remuneration as
shall be fixed by C.
B does the work.
• (b) A and B promise to marry each
other.
• (c) A takes a seat in public vehicle.
• (d) A invites B for a card party
VERDICT OF CASE 2.
• (a) There is a contract between A and B and A is
bound to pay the remuneration as shall be fixed by C.
If C does not fix , or refuses to fix the remuneration, A
is bound to pay a reasonable remuneration.
• (b) There is a contract between A and B
• (c) There is a contract between A and B
• (D) There is no contract
CASE 3.
• A forced B to enter in to a contract at
the point of pistol.
What remedy is available to B.
If he (B) does not want to be bound by
the contract ..??
VERDICT OF CASE 3.
• He (B) can repudiate the contract as his
consent is not free.
CASE 4.
• M mows L’s lawn without being asked by L to
do so.L watches M do the work but does not
attempt to stop him.
Is ‘L’ bound to pay any charges to ‘M’ ?
VERDICT OF CASE 4.
• Yes, L is bound to pay M a reasonable
remuneration.
CASE 5.
• C orally offered to pay A, an auto mechanic, Rs 50 for
testing a used car which C was about to purchase
from D.
• A agreed and tested the car. C paid A Rs 50 in cash
for his services.
Is the agreement between ‘C’ and ‘A’,
(a) express or implied,…..???
(b) executed or executory, …???
(c) Valid,void, voidable or unenforceable…???
VERDICT OF CASE 5.
The agreement is,
• (a) express,
• (b)executed, and
• (c) valid.
CASE 6.
• A promises to pay B Rs.500,
if he(B) beats C.
B beats C, but A refuses to pay.
Can B recover the amount.. ???
VERDICT OF CASE 6.
• No as the agreement is illegal.
CASE 7.
• D lived as a paying boarder with a family. He
agreed with the members of the family to
share prize money of a newspaper
competition.
• The entry sent by D won a prize 750 sterling
pounds. He refused to share the amount won.
• Can the members of the family recover their
share …….???
VERDICT OF CASE 7.
• Yes, ‘as there was mutuality in the
agreement between the parties’ and the
parties had intended to be bound.
OFFER & ACCEPTANCE
• An offer is a proposal by one party to

another to enter in to a legally
binding agreement with him.
Offer [Proposal]
A person is said to have made a proposal, when,
he,…….
“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”
[Sec.2(a)]
PROMISOR-PROMISEE
• The person making the offer is known as the, offeror,
proposer or
promisor, and
the person to whom it is made is called the,
offeree or
proposee.
When the offeree accepts the offer, he is called the
acceptor or promisee [Sec.2(c)].
How an offer is made
• E.g., An offer may be made by express

words, spoken or written. This is known
as Express offer.
When A says to B, “will you purchase my house
at Meerut for Rs.5,00,000” ?
……How an offer is made
• An offer may be inferred from the
conduct of the parties or the
circumstances.
This is known as Implied Offer.
E.g., When a transport company runs a
bus on a particular route, there is an
implied offer by the transport company
to carry passengers for a certain fare.
‘Specific’ and ‘General’ Offer…..
When an offer is made to a particular person, it is

called specific offer.
E.g. A offers to sell car to B [only] for
Rs.1,00,000.
When an offer is made to the world at large, it is called

general offer.
E.g., Mrs Carlill v. Carbolic Smoke Ball Co.[1893].

What constitutes an offer….…
• 1.The offer must show an obvious intention on the

part of the offeror to be bound by it.
Thus, if A jokingly offers B Rs 10 for his
typewriter and B knowing that A is not serious, says
“I accept”, A’s proposal does not constitute an offer.
What constitutes an offer…
• 2.The offeror must make the offer with

a view to obtaining the assent of the
offeree to such act or abstinence.
• 3.The offer must be definite.
• 4.It must be communicated to the
offeree.
LEGAL RULES AS TO OFFER
• 1.Offer must be such in law is capable of

being accepted and giving rise to legal
relationship
• 2..Terms of offer must be definite,
unambiguous and certain not loose and
vague.
……LEGAL RULES AS TO OFFER
• 3.An offer must be distinguished from;

(i) A declaration of intention and an announcement.
(ii) An invitation to make an offer or
to do business.
Newspaper advertisements are not offers. A recognized
exception to this is a general offer of reward to the public.
……LEGAL RULES AS TO OFFER
• 4.Offer must be communicated..

• In Lalman Shukla vs. Gauri Dutt, A sent his servant A in
search of missing nephew. Subsequently A issued hand
bills offering a reward of Rs.501 to any one who might trace
the boy. B brought the boy back. After some time, B was
dismissed. He filed a suit claiming the reward.
Held, there can be no acceptance without knowledge of the
offer. Hence B was not entitled to the reward. [1913]
• 5.Offer must be made with a view to obtaining the assent.

Legal rules as to offer……..
• 6.A statement of price is not an offer.

• HARVEY Vs. FACEY,[1893]
E.g., Three telegrams were exchanged between Harvey and
Facey.
1. “Will you sell your Bumper Hall Pen ? Telegraph lowest cash
price-answer paid.” [Harvey to Facey]
2. “Lowest price for Bumper Hall Pen 900 pounds.”[Facey to
Harvey]
…………..6.A statement of price is not an offer.
HARVEY Vs. FACEY,[1893]
3. “We agree to buy Bumper Hall Pen for the sum of 900
pounds asked by you” [Harvey to Facey]
Held, there was no concluded contract between Harvey and
Facey
The first telegram asked two questions;
(i) the willingness of the Facey to sell, and
(ii) the lowest price. Facey replied only to the second question
and gave his lowest price, i.e., he supplied mere information
and no offer had been made by him to sell.There could be
contract only if he had accepted Harvey’s last telegram.
Special Terms of Contract
• Where any special terms are to be

included in a contract, there must be
duly brought to the notice of the offeree
at the time when the proposal is made.
Special Terms of Contract
• If it is not done and if the contract is

subsequently entered in to, the offeree will
not be bound by them. Also these terms
should be presented in such a manner that a
reasonable man can become aware of them
before he enters in to contract.
……Special Terms of Contract
E.g., A hotel put up a notice in a bed room, exempting

the proprietor from liability for loss of client’s
goods.
Held, the notice was not effective as it came to the
knowledge of the client only when the contract to
take a room had already been entered in to.
Olley v. Marlborough Court Ltd., [1949].
Example of Special Terms of Contract
• A deposited a bag in the cloak room of a railway

station.On the face of the ticket, issued to him, was
written “see back”.One of the printed conditions
limited the liability of the company for loss of a
package to 10 pounds.The bag was lost and P
claimed 24.50 pounds, as it’s value.
• Held, ‘P’ was bound by the conditions on the back of
the ticket even if he had not read them [Parker Vs. S
E Rail Co.(1877) ]
Example of Special Terms of Contract
• If conditions are printed on the back of a ticket, but there

are no words at all on the face of it to draw the attention
of the person concerned to those conditions, he is not
bound by them;
• Example: C hired a deck chair from Muncipal Council.He
paid a hire of 2 $ for two sessions of 3 hours .He sat on the
chair, it broke and injured him.Held ,Council was liable
• [Chapleton Vs. Barry Urban District Council,1940].
• He was given a ticket which he put in his pocket.
Agreement to agree in future, is not a contract.
• If the parties have not agreed upon the terms of the

contract, but have made an agreement to agree in
future, there is no contract.
An agreement to be finally settled must comprise all
the terms which the parties intend to introduce in to
the agreement.
E.g., An actress was engaged in a theatrical company
for a certain period .One of the terms of the
agreement was that if the play was shown in
London, she would be engaged at a salary to be
mutually agreed upon. Held , there was no contract.
ACCEPTANCE
A contract emerges from the acceptance of an offer.
Acceptance is the act of assenting by the offeree to an
offer .
In other words, it is the manifestation by the offeree of
his willingness to be bound by the terms of the offer.
It is (acceptance) to an offer what a lighted match is to
a train of gun powder. It produces something which
cannot be recalled, or undone”.
This means ‘when the offeree signifies his assent to the
offeror, the offer is said to be accepted’.
Acceptance
• A proposal when accepted becomes a promise
[2(b)].
An acceptance may be express or implied.
• It is express when it is communicated by words,
spoken or written or by doing some required act.
• It is implied when it is to be gathered from the
surrounding circumstances of the cases or the
conduct of the parties.
Acceptance
• Who can accept offer ?
Acceptance of a particular offer:
When an offer is made to a particular person, it can
only be accepted by him alone. If it is accepted by
any other person, there is no valid acceptance.
The rule of law is clear that if you propose to make a
contract with ‘A’, ‘B’ cannot substitute himself for a
A ‘ without your consent.
Example of ‘an acceptance of a particular offer’.
• Boulton bought a hose pipe business from Brocklehurst.

Jones to whom Brocklehurst owed a debt, placed an order
with Brcklehurst for the supply of certain goods. Boulton
supplied the goods even though the order was not addressed
to him. Jones refused to pay Boulton for the goods because
he, by entering in to contract with Brocklehurst, intended to
set off his debt against Brocklehurst.
• Held, the offer was made to Brocklehurst and it was not in
the power of Boulton to step in accept and therefore there
was no contract .
[Boulton Vs. Jones(1857)].
• Under a quasi contract, Boulton can however recover the goods from Jones.
Acceptance of a general offer
• When an offer is made to world

at large, any persons to whom
the offer is made can accept it
[Mrs.Carlill Vs.Carbolic Smokeball Co.(1893)]
Legal Rules as to Acceptance
The acceptance of an offer is the very essence of a contract.
To be legally effective, it must satisfy the following conditions:
• 1.It must be absolute and unconditional i.e., it must
conform with the offer.
• 2.It must be communicated to the offeror
• 3.It must be according to the mode prescribed or
usual and reasonable mode.
• 4.It must be given within a reasonable time.
…..Legal Rules as to Acceptance
• 5.It cannot precede an offer.
• 6.It must show an intention on the part of the
acceptor to fulfill terms of the promise.
• 7.must be given by the party or parties to
whom the offer is made.
• 8.It must be given before the offer lapses or
before the offer is withdrawn.
• 9.It cannot be implied from silence.
1. It must be absolute and unconditional
i.e., it must conform with the offer.
• An acceptance, in order to be binding, must be absolute and

unqualified [Sec.7(1)] in respect of all terms of the offer,
whether material or immaterial, major or minor.
• If the parties are not ad idem on all matters concerning the
offer and acceptance, there is no contract.
• Examples:
• a) ‘A’ made an offer to ‘B’ to purchase a house with
possession from 25th July. The offer was followed by an
acceptance suggesting possession from 1st August. Held, there
was no contract. [ Rutledge Vs .Grant (1828)]
……….1.It must be absolute and unconditional
i.e., it must conform with the offer.
• Examples:
• b) M offered to sell a piece of land to N at 280
sterling pounds. N accepted and enclosed 80
sterling pounds with a promise to pay the
balance by monthly installments of 50 sterling
pounds each. Held, there was no contract
between M and N, as the acceptance was not
unqualified. [Neale Vs. Merret (1930)].
……….1.It must be absolute and unconditional
.
i.e., it must conform with the offer
• c) N offered to buy J’s horse if warranted quiet

in harness. J agreed to the price and
warranted the horse in quiet double harness.
Held, there was no acceptance.
[Jordon Vs.Norton,1838]
d) A says to B, I offer to sell my car for Rs.50,000”. B
replies, I will purchase it for Rs.45,000”. This is no
acceptance and amounts to counter offer.
2.It must be communicated to the offeror
• To conclude a contract between the parties,

the acceptance must be communicated in
some perceptible form.
• A mere resolve or mental determination on
the part of the offeree to accept an offer,
when there is no external manifestation of the
intention of the intention to do so, is not
sufficient. [ Bhagwandas Kedia Vs. Giridharilal (1966)]
• Examples:
• a) ‘A’ tells ‘B’ that, he intends to marry ‘C’. But tells
‘C’ ‘nothing of his intention. There is no contract
even if ‘C’ is willing to marry ‘A’.
• b) A draft agreement relating to supply of coal was
sent to the manager of a railway company for his
acceptance. The manager wrote the word
“approved” and put the draft in the drawer .
Held, there was no contract.
[Brogden Vs. Metropolitan Rail Co.(1877)].
• ‘F’ offered to buy his nephew’s horse for 30 sterling

pounds saying: “If I hear no more about it I shall
consider the horse is mine at 30 sterling pounds”.
The nephew did not write to ‘F’ at all, but he told his
auctioneer who was selling his horses not to sell that
particular horse because it had been sold to his
uncle. The auctioneer inadvertently sold the horse.
Held, ‘F’ had no right of action against the auctioneer
as the horse had not been sold to ‘F’, his offer of 30
pounds not having been accepted [Felthouse Vs. Brindley (1862)].
3.It must be according to the mode prescribed or usual
and reasonable mode.
• The communication must be according to the mode

prescribed [ Sec.7(2)]
• Eg. If the Offeror has sought the communication of
acceptance from offeree by telephone, it cannot be
given by post.
• In case, the acceptance is made in a manner other than the
mode prescribed but the offeror does not raise any objection
within a reasonable time, the acceptance will be binding.
4. It must be given within a reasonable time
• The acceptance to an offer must be given within a

reasonable time. If it is not given within a reasonable
time, the offer lapses.
• In Ramsgate Victoria Hotel Ltd. Vs. Montefiore(1886)
M applied for the shares of R Co on 8 th June. But the
Company did not intimate about allotment until
November. M refused to take shares. Held, the offer
was lapsed by unreasonable delay.
5.It cannot precede an offer.
• In a company shares were allotted to a

person who had not applied for them.
Subsequently when he applied for
shares , he was unaware of the previous
allotment.
The allotment of shares previous to
application is invalid.
6.It must show an intention on the part of the acceptor to fulfill
terms of the promise.
• If no such intention is present, the acceptance

is invalid.
7.Must be given by the party or parties to whom the offer is
made.
• Boulton bought a hose pipe business from Brocklehurst.

• Jones to whom Brocklehurst owed a debt, placed an order with
Brcklehurst for the supply of certain goods.
• Boulton supplied the goods even though the order was not addressed to
him.
• Jones refused to pay Boulton for the goods because he, by entering in to
contract with Brocklehurst, intended to set off his debt against
Brocklehurst. Held, the offer was made to Brocklehurst and it was not
in the power of Boulton to step in accept and therefore there was no
contract
[ Boulton Vs. Jones (1857)].
• Under a quasi contract, Boulton can however recover the goods from.
Jones.
8.It must be given before the offer lapses or before the offer is
withdrawn.
9.It cannot be implied from silence.
• The acceptance of an offer cannot be implied

from the silence of the offeree or his failure to
answer, unless the offeree has by his
previous conduct indicated that his silence
means that he accepts. A wrote to B., I offer you
my car for Rs.10,000. If I don’t hear from you in
seven days , I shall assume that you accept”. B did
not reply at all. There is no contract.
Communication of Offer, Acceptance and Revocation
• An offer, it’s acceptance and their revocation

(withdrawal) to be complete must be communicated.
The rules are as follows;
Mode of Communication [Sec.3]
An offer, acceptance it’s revocation must be
communicated by words spoken or written or by
conduct.
• Installing a weighing machine is an offer, putting a
coin in the slot of the machine is an acceptance and
switching off of the machine amounts to
revocation.
When is communication complete [Sec.4]
• Communication of offer: The communication of offer is

complete when it comes to the knowledge of the person
to whom it is made.
E.g., A proposes by a letter, to sell a house to B
at a certain price. The letter is posted on 10th
July.
It reaches B on the 12th July.
The communication of offer is complete when B
receives the letter i.e., 12th July.
When is communication complete[S.4]
• Communication of Acceptance: Communication of acceptance is

complete-
* as against the promisor, when it is put in the course of
transmission to him, so as to be out of power of the promisee ;
* as against the promisee, when it comes to the knowledge of
the promisor.
E.g., ‘B’ accepts ‘A’ s proposal, in the above case, by a letter sent by
post on 13th instant. The letter reaches ‘A’ on 15th instant. The
communication of Acceptance is complete, as against the ‘A’, when
the letter is posted, i.e., on 13th, as against ‘B’, when the letter is
received by ‘A’, i.e., on 15th.
When is communication complete…..
• The communication of revocation is complete

-as against the person who makes it, when it
is put in to the course of transmission to the
person to whom it is made so as to be out of the
power of the person who makes it ;
-as against the person to whom it is made,
when it comes to his knowledge(Sec.4)
When is communication complete……
Ex. A proposes, by a letter, to sell his house to

B at a certain price .The letter is posted on 15th
May. It reaches B on 19th May.
A revokes his offer by telegram on 18th May. The
telegram reaches B on 20th May. The
revocation is complete as against A when the
telegram is dispatched i.e., on 18th May. It is
complete as against B when he receives it. i.e.,
on 20th May.
Time for Revocation of Offer and Acceptance (Sec.5)
• Time for Revocation of Proposal(Sec.5,para 1)

A proposal may be revoked at any time before the
communication of it’s acceptance is complete as against
the proposer, but not afterwards.
Ex. A proposes by a letter sent by post to sell his house to B.
The letter is posted on the 1st of the month. B accepts the
proposal by a letter sent by post on the 4th. The letter
reaches A on the 6th.
A may revoke his offer at any time before B posts his letter of
acceptance, i.e., on 4th but not afterwards.
B may revoke his acceptance at any time before the letter of
acceptance reaches A, i.e., on 6th but not afterwards.
OFFER AND ACCEPTANCE:PRACTICAL PROBLEMS
1.Are the following offers valid ?

(a) A garment store gave the following advertisement in a newspaper:
“Special sale for tomorrow only. Men’s night suits reduced from Rs200
to Rs100.”
(b) P says to Q “I will sell you a camera.” P owns three different types
of cameras of different prices.
(c) An auctioneer displays a refrigerator before a gathering in an

auction sale.
(d) A advertises in The Statesman that he would pay Rs 200 to any
one. who finds and returns his lost dog.
Solution for Case.1
• 1.(a),(b) and (c) there is no offer.
• In case of (d) there is a valid offer. Any
person can accept it by performing the
act with the knowledge of the reward.
[Fitch vs. Snedaker]
Case 2.
• A tells B in the course of a conversation
with him that he will give Rs10,000 to
anyone who marries his daughter with
his consent. B marries A’s daughter with
A’s consent .
• Is he entitled to recover the amount ?
Solution for Case.2
• No, as what A tells B is a statement of intention.
Case.3
• A sees a rare book displayed in a shop.
• It is labeled “First Edition Rs15.”
• A enters the shop and puts Rs 15 on the counter and
asks for the book.
• seller does not agree to sell that book, says, the real
price of the book is Rs 50 and that it had been
marked as Rs 15 by mistake.
• Is the bookseller bound to sell the book for Rs. 15 ?
Solution for Case.3
• No.
• (Pharmaceutical Society of Great Britain Vs.
Boots Cash Chemists).
Case.4
• A sent a telegram to B, “will you sell your car?
Quote lowest price.”
• B sent a reply “ Lowest price Rs 25,000”.
• A sent a second telegram to B.
• “I agree to buy your car for Rs 25,000”.
• B there after refuses to sell.
(1) Can A compel B to do so ?
(2) Is there a contract between A and B ?.
Solution for Case.4
• (a) No (b) No. ( Harvey vs. Facey)
Case.5
• A sent a letter to B offering to sell his house to B. The next
day, A wrote another letter revoking his offer. Meanwhile, B
had accepted A’s offer by return of post.
• What is B’s remedy, if any, against A:
• (a)If A’s letter of revocation reaches B before B’s letter of
acceptance reaches A;
• (b) If B’s letter of acceptance is lost in the post;
• © If B’s letter of acceptance is posted an hour after posting
of A’s letter of revocation ?
Solution for Case.5
• In all three cases there is a concluded contract
between A and B.
I.e., as soon as the letter of acceptance is posted by B.

Case.6
• B offered to sell his house to A for Rs.50,000.A
accepted the offer by post.
On the next day, A sent a telegram withdrawing the
acceptance which reached B before the letter.
(a) Is the revocation of acceptance valid ?
(b) Would it make any difference if both the letter of
communicating acceptance and the telegram
communicating revocation of acceptance, reach B
at the same time?
Solution for Case. 6
• (a) Yes.
• (b) If A opens the telegram first (and this would be
normally so in case of rational person) and reads it,
the acceptance stands revoked.
• If he reopens the letter first and reads it, revocation
of acceptance is not possible as the contract has
already been concluded.
CONSIDERATION
• Consideration is one of the essential elements to support

a contract. Subject to certain exceptions,an agreement
made without consideration is “nudum pactum” (a nude
contract) and is void.
• Justice Patterson defines consideration in the following
words: “Consideration means something which is of some
value in the eye of law…It may be some benefit to the
plaintiff or some detriment to the defendant.”
[Thomas vs. Thomas(1842)].
• There are two leading cases which explain this point.
Abdul Aziz vs. Masum Ali(1914)
• The secretary of a Mosque Committee filed a suit to

enforce a a promise which the promisor had made to
subscribe Rs.500 to the rebuilding of a mosque.
• Held, “the promise was not enforceable because there
was no consideration in the sense of benefit” , as “the
person who made the promise gained nothing in return
for the promise made”, and the secretary of the
Committee to whom the promise was made, suffered no
detriment as nothing had been done to carry out the
repairs. Hence the suit was dismissed.
Kedarnath vs. Gauri Mohammad
Calcutta [1886]
• The facts of this case were almost similar to those of

the previous case, but the secretary in this case
incurred a liability on the strength of the promise.
Held, the amount could be recovered, as the promise
resulted in a sufficient detriment to the secretary.
The promise could, however, be enforced only to the
extent of the liability(detriment) incurred by the
secretary. In this case, the promise, even though it
was gratuitous, became enforceable because on the
faith of the promise the secretary had incurred a
detriment.
Definition of Consideration
[Section 2(d) of Indian Contract Act,1872]
• “When at the desire of the promisor,

promisee or any other person has done
or abstained from doing or does or
abstains from doing, or promises to do
or to abstain from doing, something,
such act or abstinence or promise is
called a consideration for the promise.”
Analysis of
Definition of Consideration
• (1) An act, i.e., doing of something. In this sense consideration is in an
affirmative form.
Example: A promises B to guarantee payment of price of the goods
which B sells on credit to C. Here selling of goods by B to C is consideration
for A’s promise.
(2) An abstinence or forbearance, i.e., abstaining or refraining from doing
something. In this sense consideration is in a negative form.
Example: A promises B not to file a suit against him if he pays him
Rs.500.The abstinence of A is the consideration for B’s payment.
(3) A return promise.
Example: A agrees to sell his horse to B for Rs 1o,ooo. Here B’s
promise to pay the sum of Rs.10,000 is the consideration for A ;’s promise
to sell the horse, and A’s promise to sell the horse is the consideration for
B’s promise to pay the sum of Rs.10,000.
Need for Consideration
• The reason why the law enforces

only those promises which are made
for consideration is that gratuitous
or voluntary promises are often
made rashly and without due
deliberation.
Legal Rules as to Consideration
• 1.It must move at the desire of the promisor.

• 2.It may move from the promisee or any other person.
• 3.It may be an act, abstinence or a return promise.
• 4.It may be past, present or future.
• 5.It need not be adequate.
• 6.It must be real and not illusory
• 7.It must be something which the promisor is not already
bound to do.
• 8.It must not be illegal, immoral or opposed to public
policy (Sec.23).
Legal Rules as to Consideration……….
• 1. It must move at the desire of the promisor:

An act constituting consideration must have been done at the
desire or request of the promisor .
If it is done at the instance of a third party or without the
desire of the promisor , it will not be a good consideration.
Example: A saves B’s goods from fire without being
asked to do so. A cannot demand payment for his services.
• 2.It may move from the promisee or any other person.

Consideration may move from promisee or any
other person, i.e., even a stranger. This means that
, as long as there is consideration for a promise
it is immaterial who has furnished it.
But the stranger to consideration will be able to
sue only if he is a party to the contract.
• 2.It may move from the promisee or any other person

Example: An old lady, by a deed of gift, made over
certain property to her daughter D, under the direction that
she should pay her aunt, P (sister of the old lady), a certain
sum of money annually. The same day D entered in o an
agreement with P to pay her the agreed amount. Later, D
refused to pay the amount on the plea that no consideration
had moved from P to D. Held, P was entitled to maintain
suit as consideration had moved from the old lady, sister of
P, to the daughter.
[Chinnayya vs. Ramayya (1882)]
• 3.It may be an act, abstinence or a return promise.

(1)Forbearance to sue: If a person who could sue another for the
enforcement of a right agrees not to pursue his claim, this
constitutes a good consideration for the promise by the other person.
This results in a benefit to the person not sued and a detriment to the
person who could sue.
Ex: A borrows from B Rs.100 at 20 percent p.a., and fails to pay the
amount. When B is about to file a suit, A agrees to pay a higher rate
of interest. B, as a result, does not file the suit. This forbearance on
the part of B to file a suit is a sufficient consideration and B can
enforce the promise by A to pay the higher rate of interest.
3……It may be an act, abstinence or a return promise.

(2) Compromise of a disputed claim:
Compromise is a kind of forbearance. Originally , the claim
should be reasonable and the person claiming should honestly
believe that it is a valid claim. He should also act bona fide (in
good faith).
(3) Composition with creditors: A debtor who is financially
embarrassed may call a meeting of his creditors and request
them to accept a lesser amount in satisfaction of their debt. If
the creditors agree to it, the agreement is binding both upon the
debtor and the creditors as this amounts to a compromise of the
claims of the creditors.

(1)Past Consideration:
When consideration by a party for a present promise was
given in the past, i.e., before the date of the promise, it is
said to be past consideration.
Example: A renders some service to B at latter’s
desire. After a month B promises to compensate A for
services rendered to him. It is past consideration. A
can recover promised amount.

(2) Present or Executed Consideration:
When consideration is given simultaneously with promise, i.e., at the
time of promise, it is said to be present consideration. In case sale,
for example, consideration is present or executed.
Example: A receives Rs. 50 in return for which he promises
to deliver certain goods to B. The money A receives which he
promises to deliver certain goods to B. The money A receives is
the present consideration for the promise he makes to deliver
the goods.

(3) Future or executory consideration:
When consideration from one party to the other is to
pass subsequently to the making of the contract, it is future
or executory consideration.
Example:
D promises to deliver certain goods to P after a week; P
promises to pay the price after a fortnight. The promise
of D is supported by the promise of P. Consideration in
this case is future or executory.
• 5.It need not be adequate.

Consideration, as already explained, means
“something in return”. This something in return
need not necessarily be equal to “something
given”. The law simply provides that a contract
should be supported by consideration.
So long as consideration exists, the Courts are not
concerned as to it’s adequacy, provided it is of
some value.
• 6.It must be real, and not illusory.

Although consideration need not be adequate, it must be real,
competent and of some value in the eyes of the law.
There is no real consideration in the following cases:
(1) Physical Impossibility: A promises to put life in to B’s dead wife
should B pay him Rs.500. A’s promise is physically impossible of
performance.
(2) Legal Impossibility: A owes Rs 100 to B. He promises to pay
Rs.20 to C, the servant of B, who in return promises to discharge
A from the debt. This is legally impossible because C cannot give
discharge for a debt due to B, his master.
[Harvey vs. Gibbons, (1675)]
• ………….6.It must be real, and not illusory

(3) Uncertain consideration:
A engages B for doing a certain work and promises to pay a
“reasonable” sum. There is no recognized method of ascertaining
the “reasonable” remuneration. The promise is unenforceable as
consideration is uncertain.
(4) Illusory consideration:
Two of the crew of a ship deserted it half way through a voyage. The
captain thereby promised to divide the salary of the deserters among
the rest of the crew if they worked the vessel home.
• 7.It must be something which the promisor is not already bound

to do.
A promise to do what is already bound to do, either by general
law or under an existing contract, is not a good
consideration for a new promise, since it adds nothing to
the pre-existing legal or contractual obligation.
Likewise a promise to perform a public duty by a public
servant is not a consideration.
• 8.It must not be illegal, immoral or opposed to public

policy.
The consideration given for an agreement must not be
unlawful.
Where it is unlawful, the Courts do not allow an action
on the agreement.
STRANGER TO CONTRACT
• It is general rule of law that only parties to a

contract may sue and be sued on that contract.
This rule is known as the
“Doctrine of privity of contract. ”
• Privity of contract means relationship subsisting
between the parties who have entered in to
contractual obligations.
• It implies a mutuality of will and creates a legal bond
or tie between the parties to contract.
Two Consequences of the
“Doctrine of Privity of Contract”
• (1) A person who is not a party to a contract

cannot sue upon it even though the contract is for
his benefit and he provided consideration.
• (2) A contract cannot confer rights or impose
obligation arising under it on any person other than
the parties to it.
Thus, if there is a contract between A and B, C
cannot enforce.
[Dunlop Pneumatic Tyre Co.Ltd. Vs. Selfridge & Co. Ltd.,( 1915)]
Dunlop Pneumatic Tyre Co.Ltd.
Vs.
Selfridge & Co.Ltd.,(1915)
• S bought tyres from the Dunlop Rubber Co.

and sold them to D, a sub-dealer, who agreed
with S not to sell below Dunlop’s list price and
to pay the Dunlop Co. 5 pounds as damages
on every tyre D undersold. D sold two tyres at
less than the list price and thereupon the
Dunlop Co. sued him for the breach.
• Held, the Dunlop Co. could not maintain the
suit as it was a stranger to the contract.
Exceptions to the rule
“stranger to a contract cannot sue.”
• 1.A trust or charge:

• A person (called beneficiary) in whose favor a
trust or other interest is created can enforce it even
though he is not a party to the contract.
Example: A agrees to transfer certain
properties to be held by T in trust for the
benefit of B .B can enforce the agreement
(i.e., the trust) even though he is not a party
to the agreement [M.K. Rapai Vs. John(1965)]
• 2.Marriage settlement, partition or other family
arrangements.
Example: Two brothers, on a partition of joint
properties, agreed to invest in equal shares a
certain sum of money for the maintenance of their
mother.
Held, she was entitled to require her sons to make the
investment.
[Shuppu Ammal vs. Subramaniam (1910) Madras High Court.]
Exceptions to the rule “stranger to a contract cannot sue.”
• 3.Acknowledgement or estoppel:
Where the promisor by his conduct,
acknowledges or otherwise constitutes
himself as an agent of a third party, a binding
obligation is thereby incurred by him towards
the third party.
Example: ‘A’ receives some money from ‘T’ to
be paid over to ‘P’.’ A’ admits of this receipt
to ‘P’. ‘P’ can recover the amount from ‘A’
who shall be regarded as the agent of ‘P’.
• 4.Assignment of contract:
The assignee of rights and benefits under a contract not
involving personal skill can enforce the contract subject to
the equities between original parties.
• 5.Contracts entered in to through an agent:

The principal can enforce the contracts entered in to by his
agent provided the agent acts within the scope of his
authority and in the name of the principal.
“No consideration, no contract”
-Exceptions
• The general rule is ‘ex nudo pacto non
oritur actio’, i.e., an agreement made without
consideration is void.
Sec.25 and 185 dealt with the exceptions to
this rule.
In such cases agreements are enforceable even
though they are made without consideration.
These cases are---
“No consideration, no contract”
-Exceptions
1.Love and Affection [Sec.25(1)]:
Where an agreement is expressed in writing
and registered under the law for the time
being in force for the registration of
documents and is made on account of natural
love and affection between the parties
standing in near relation to each other, it is
enforceable even if it is without
consideration.
Examples:
(a) F ,for natural love and affection, promises to give his son,
S, Rs.1,000.F puts his promise to S in writing and
registers it . There is a contract.
(b) By a registered agreement, V on account of natural love
and affection for his brother, R, promises to discharge his
debt to B. If V does not discharge the debt, R may
discharge it and then sue V to recover the amount.
[Venkataswamy vs. Ramaswamy, (1903)
Nearness of relationship, however does not necessarily imply
natural love and affection.
• Example:
A Hindu husband, after referring to quarrels and
disagreement between his wife executed a registered
document in favor of his wife agreeing to pay her for
maintenance , but no consideration moved from his wife.
Held, the agreement was void for want of consideration , as
the essential requirement that the agreement is made on
account of natural love and affection between the parties
was missing.
[Rajlukhy vs. Bhoothnath (1900)]
“No consideration, no contract”.
-Exceptions
• 2.Compensation for voluntary services.[Sec.25(2)]

A promise to compensate, wholly or in part, a person who has
already voluntarily done something for the promissor, is
enforceable, even though without consideration. In simple
words, a promise to pay for a past voluntary service is
binding.
Examples: (a) A finds B’s purse and gives it to him . B
promises to give Rs. 50 .This is a contract.
(b)A says to B, “ At the risk of your life you saved me
from a serious accident. I promise to pay you
Rs.1,000.”There is a contract between A and B.
“No consideration, no contract”.
-Exceptions
• 3.Promise to pay a time barred debt:[Sec.25(3)]

A promise by a debtor to pay a time barred debt [Sec.25(3)]
A promise by a debtor to pay a time barred debt is
enforceable provided it is made in writing and is signed by
the debtor or by his agent generally or specially authorized
in that behalf.
The promise may be to pay the whole or any part of the debt.
The debt must be such “ of which the creditor might have
enforced payment but for the law for the limitation of suits.”
A contract without consideration is void
-Exceptions
• A debt is barred by limitation if it remains unpaid or

unclaimed for a period of three years. Such a debt
becomes legally recoverable.
Example: D owes C Rs.1,000 but the debt is
barred by the Limitation Act. D signs a
written promise to pay C, Rs.500 on
account of the debt. This is a contract.
-Exceptions
4. Gift:
The rule “ No consideration, no contract”
does not apply to completed gifts.
According to explanation 1 to Sec.25,
nothing in Sec.25 shall affect the validity, as
between the donor and donee , of any gift
actually made.
-Exceptions
• 5.Agency [Sec.185] No consideration is

necessary to create an agency.
• 6.Charitable Subscription:
Where the promisee on the strength of the
promise makes commitments, i.e., changes his
position to his detriment.[
Refer. Kedarnath Vs. Gauri Mohammad].
Consideration: Practical Problems
• 1. A promises a subscription of
Rs.10,000 to the National
Defense Fund. He does not pay.
Is there any legal remedy against
him?
Answer: Case.1
• No.(Abdul Aziz vs. Masum Ali)
Case.2
• Can A recover in the following cases?
(a) B gets in to difficulties while swimming in
the river Ganga and cries for help. A hears
the cry, removes his coat and dives in to
water and rescues B. B, who is full of
gratitude, promises to pay A Rs.200 but
fails to do so.
Case.2
• (b) B writes to A, “At the risk of
your own life, you saved me from a
serious motor accident. I promise to
pay you Rs.1,000.”
Case.2
• (c) While B is away on holiday, a storm
damages the roof of B’s house, and his
neighbor, A, carries out the necessary
repairs. On his return, B promises to pay A
Rs.200 for the work done and materials
supplied.
Case.2
• (d) A finds B’s purse and gives it to
him . B promises A to give him
Rs.100
Case.2
• (e) A, who is B’s friend, seeks the help of a
few persons in putting down a fire in B’s
house. B promises to give A Rs. 100 for his
timely help.
Answers to case.2
• Yes. A can recover the amount
from B in all the cases. [Sec.25(2)]
Case.3
• A owes B Rs.1,000 but the debt is
barred by limitation. A gives a letter
to B agreeing to pay him Rs 500 on
account of the debt. Is this a valid
agreement?
Answer to Case.3
• Yes. [Sec.25(3)]
Case.4
• A, being a dire need of money, sells his new
car purchased two months ago at a cost of
Rs.1,72,000 for Rs.11,000. Afterwards A
seeks to set aside the contract on the
ground of inadequacy of consideration.
Will he succeed?
Answer to Case.4
• No.
Case.5
• A,B, and C enter in to a contract under
which A promises both B and C that if B
will dig A’s garden, he (A) will give Rs.50 to
C. Can C compel A to pay the money on
B’s digging A’s garden according to the
terms of the contract?
Give reasons.
Answer to Case.5
• Yes.
Case.6
• A’s Uncle in a sudden display of generosity
promises him a watch as a gift on his next
birthday.
If the uncle fails to give the watch, can ‘A’ do
anything about it legally?
Answer to Case.6
• No.
CAPACITY TO CONTRACT
[ COMPETENCY OF THE PARTIES ]
• The parties who enter in to contract must have capacity to
do so.
• Capacity here means competency of the parties to enter in
to contract.
• According to Sec.10 an agreement becomes a contract, if
it is entered in to between the parties who are competent to
contract.
• According to Sec.11 every person is competent to
enter in to contract who(a) is of the age of majority
according to the law to which he is subject.(b) is of sound
mind, and (c) is not disqualified from contracting by any law
to which he is subject.
…..CAPACITY TO CONTRACT
[COMPETENCY OF THE PARTIES]
• Thus Section 11 declares the following persons to

be incompetent to contract;
• 1.Minor
• 2.Persons of unsound mind, and
• 3. Persons disqualified by any law to
which they are subject.
1.Minors
• According to Indian Majority Act,1875, a minor is
a person who has not completed 18 years of age.In
the following two cases , he attains majority after 21
years of age.
(1) Where a guardian of a minor’s person or
property has been appointed under the
Guardians and Wards Act,1890 or
(2) Where the superintendence of a minor’s
property is assumed by a Court of Wards.
Minor’s Agreements
• 1. An agreement with or by a minor is void and inoperative
ab initio.
• In this case a minor mortgages his house in favor of a money
lender to secure a loan of Rs.20,000 out of which the
mortgagee (the money lender) paid the minor a sum of
Rs.8,000. Subsequently the minor sued for setting aside
the mortgage, stating that he was under-age when he
executed the mortgage.
• Held, the mortgage was void and, therefore, it was cancelled.
Further the money lender’s request for the repayment of the amount
advanced to the minor as part of the consideration for the mortgage
was also not accepted.
[Mohiribibi vs. Dharmodas Ghose,(1903) Calcutta High Court]
..Minor’s Agreements
• 2.He can be a promisee or a beneficiary:
Inadequacy of a minor to enter in to a contract means
incapacity to bind himself by a contract. There is nothing
which debars from becoming a beneficiary.
[Sharafat Ali Vs. Noor Mohammed(1924)].
Example: (a) M, aged 17, agreed to purchase a second-hand
scooter for Rs.5,000 from S. He paid Rs.200 as advance
and agreed to pay the balance the next day and collect the
scooter. When he came with the money the next day, S told
him that he had changed his mind and offered to return the
advance. S cannot avoid the contract, though M may, if he
likes.
..Minor’s Agreements
• 3.His agreement cannot be ratified by him on attaining the
age of majority.
“Consideration which passed under the earlier contract
cannot be implied in to the contract which the minor enters
on attaining majority.”
[ Nazir Ahmed Vs. Jiwan Dass]
• Thus consideration given during minority is no
consideration.
• If it is necessary a fresh contract may be entered in to by
the minor on attaining majority provided it is supported by
fresh consideration.
[S. Shanmugam Pillai Vs. K. S. Pillai (1973) SC ].
• 4.If he has received any benefit under a void agreement , he
cannot be asked to compensate or pay for it. Sec.65
provides for restitution in case of agreements
discovered to be void does not apply to a minor.
Example: M, a minor, obtains a loan by mortgaging

his property. He is not liable to refund the loan.
Not only this, even his mortgaged property cannot
be made liable to pay the debt.
• 5.He can always plead minority:
Even ,if he has , by misrepresenting his age,
induced the other party to contract with him,
he cannot be sued in contract for fraud
because if the injured party were allowed to
sue for fraud, it would be giving him an
indirect means of enforcing the void
agreement.
…Minor’s Agreements
5.He can always plead minority:

Example: S, minor, by fraudulently representing himself to be
of full age, induced L to lend him 400 POUNDS. He
refused to repay it and L sued him for the money .
Held, the contract was void and S was not liable to repay the
amount [Leslie vs. Shiell,1914] Lawrence J observed that
in this case “ Wherever an infant is still in possession of any
property in specie which he has obtained by his fraud, he will
be made to restore to it’s former owner. But I think it is
incorrect to say that he can be made to repay money which
he has spent , merely because he received it under a
contract induced by fraud”.
….5.He can always plead minority:
• The Court may, where some loan or

property is obtained by the minor by some
fraudulent representation and the agreement
is set aside , direct him, on equitable
considerations, to restore the money or
property to the other party. Where as the
law gives protection to the minors , it does
not give them liberty “to cheat men.”
….Minor’s Agreements
• 6.There can be no specific performance of the agreements
entered in to by him as they are void ab initio.
A contract entered in to on his behalf by his parent

or guardian or the manager of his estate can be
specifically enforced by or against the minor
provided the contract is (a) within the scope of the
authority of the parent/guardian/manager, and (b)
for the benefit of he minor.
…….Minor’s Agreements
• 7. He cannot enter in to a contract of partnership.
But he may be admitted to the benefits of an already

existing partnership with the consent of the other
partners.
• 9. He cannot be adjudged insolvent.

This is because he is incapable of contracting debts.
• 10.He is liable for the ‘necessaries’ supplied
or necessary services rendered to him or
anyone whom he is legally bound to support.
In Nash. Vs. Inman (1908) a college student,
already having sufficient clothes suited to
his condition of life, was provided clothing of
an extravagant style by the defendant .
Held, these were not necessaries. Hence, the
supplier cannot recover.
• 11.He can be an agent.
An agent is merely a connecting link between
his principal and third party. As soon as the
principal and the third party are brought
together, the agent drops out. A minor binds
the principal by his acts without incurring any
personal liability.
• 12. His parents / guardian are /is liable for the
contract entered in to by him , even though the
contract is for the supply of necessaries to
the minor. But if the minor is acting as an
agent for the parents/guardian, the
parents/guardian shall be liable under the
contract.
• 13.A minor is liable in tort (A civil wrong).

But where a tort arises out of contract a
minor is not liable in tort as an indirect way of
enforcing a invalid contract.
Minor’s Liability for Necessaries of Life.
• A minor is liable to pay out of his property for

‘necessaries’ supplied to him or to anyone whom he
is legally bound to support.(Sec.68).
• The claim arises not out of contract but out of
what is known as ‘quasi contracts’.
• Again it is only the property of the minor that is
liable for meeting the liability arising out of such
contracts. He is not personally liable.
• The law has provided this exception intentionally
because if it were not so, it would beimpossible for
minors even to live.
What are necessaries of life ?
• The term necessaries is not defined in, ICA,1872.

The English Sale of Goods Act 1893, defines it in Sec.2
as “ goods suitable to the condition in life of such infant or
other person, and to his actual requirement at the time of
sale and delivery”.
• Such goods need not necessarily belong to a class of
goods, but they must be (I) suitable to the position and
financial status of the minor, and (ii) necessaries both at the
time of sale and at the time of delivery
2.Persons of Unsound Mind.
• One of the essential conditions of competency of parties to
a contract is that they should be of sound mind.Sec.12 lays
down a test of soundness of mind. It reads as follows:
“ A person is said to be of sound mind, for the purpose of
making a contract if, at the time when he makes it, he is
capable of understanding it and of forming a rational
judgment as to its effect upon his interests.
A person who is usually of unsound mind but
occasionally of sound mind, may make a contract when he is
of sound mind.
A person who is usually of sound mind, but occasionally
of unsound mind, may not make a contract when he is of
unsound mind.” EXAMPLES………..
Persons of Unsound Mind.
• Examples:
(a) A patient in a lunatic asylum, who is at intervals of
sound mind, may contract during those intervals.
(b) A sane man who is delirious from fever, or who is
so drunk that he cannot understand the terms of
a contract, or form a rational judgment as to it’s
effect on his interests, cannot contract while such
delirium or drunkenness lasts.
Persons of Unsound Mind
Soundness of mind of a person depends upon two facts:
1.His capacity to understand the contents of the person concerned,
and
2.His ability to form a rational judgment as to it’s effect upon his
interests.
If a person is incapable of both, he suffers from unsoundness of mind.
Whether a party to a contract is of sound mind or not is a question
of fact to be decided by the Court. There is a presumption in favor
of sanity.
If a person relies on unsoundness of mind, he must prove it sufficiently
to satisfy the Court.
Contracts of Persons of Unsound Mind
• LUNATICS. A lunatic is a person who is mentally

deranged due to some mental strain or other personal
experience. He suffers from intermittent intervals of sanity
and insanity. He can enter in to contract when he is of
sound mind.
• IDIOTS. An idiot is a person who has completely lost
his mental powers.
He does not exhibit understanding of even ordinary
matters. Idiocy is permanent where as lunacy denotes
periodical insanity with lucid intervals. An agreement of an
idiot, like that of a minor, is void.
Contracts of
Persons of Unsound Mind
• DRUNKEN OR INTOXICATED
PERSONS.
A drunken or intoxicated person suffers from
temporary incapacity to contract, i.e., at the time
when he is so drunk or intoxicated that he is
incapable of forming a rational judgment.
However, persons of unsound mind are liable for
necessaries supplied to them or to anyone whom
they are legally bound to support .
3. Other persons
• ALIEN ENEMIES. Contracts with alien enemy[an
alien whose State is at war with the Republic of India] may
be studied under two heads, namely-
(a) contracts during the war, and
(b) contracts made before the war
(a) During the continuance of he war, an alien enemy can
neither contract with an Indian subject nor can he sue in an
Indian Court. He can do so only after he receives a license
from the Central Government.
3. Other persons
• ALIEN ENEMIES.
(b) Contracts made before the war may either be
suspended or dissolved. They will be dissolved if
they are against the public policy or if their
performance would benefit the enemy. For this
purpose even an Indian who resides voluntarily in a
hostile country, or who is carrying on business there
would be treated as an alien enemy.
Foreign sovereigns, their diplomatic staff and
accredited representatives of foreign states
• They have some special privileges and

generally cannot be sued unless they of their
own submit to the jurisdiction of our law
Courts.
• But an Indian has to obtain prior sanction
of the Central government in order to sue
them in our law Courts without any such
sanction . [Mighell vs. Sultan of Johore (1894)].
CORPORATIONS [COMPANY]
• A corporation is an artificial person created by law, having a
legal existence apart from it’s members. It may come in to
existence by a special Act of Legislature registration
under Companies Act, 1956.
• A contractual capacity of a company [corporation] is
regulated by the terms of Memorandum of Association and
the provisions of Companies Act,1956.If it exceeds it’s
powers, whether expressly conferred on it or derived by
reasonable implication from it’s objects clause in the
Memorandum, the contract ultra vires and is void.
INSOLVENTS & CONVICTS
• INSOLVENTS:
When a debtor is adjudged insolvent is deprived of
his power to deal in that property. It is only the
official Receiver or Official Assignee who can enter in
to contracts relating to his property, and sue and be
sued on his behalf.
• CONVICTS:
A convict when undergoing imprisonment is
incapable of entering in to contract.
PRACTICAL PROBLEMS
• 1.A minor fraudulently represented to a
money lender that he was of full age and
executed a mortgage deed for Rs.10.000. Has
the money lender any right of action against
the minor for the money lent or for damages
for fraudulent misrepresentation ?
Answer to Case.1
• No.(Mohiri bibi vs. Dharmodas Ghose)
(Leslie vs. Shiell)
Case 2.
• 2.A minor is supplied with necessaries of life
by a grocer. He makes out a promissory note
in favor of the grocer. Is the grocer entitled
to claim payment under the promissory note
(a) from minor personally, (b)against his
estate.
Answer to Case.2
• (a) No
• (b) Yes(Sec.68)
Case .3
• 3. M, a minor aged 17, broke his right arm in a
hockey game. He engaged a physician to set it.
Does the physician have a valid claim for his
services ?
Answer to Case.3
• Yes, but it is only M’s estate which will be
liable(sec.68).
Case.4
• A, an adult, said to M, a minor: “I will not pay
the commission I promissed you for selling
my magazines. You are a minor and cannot
force me to pay.” Is A right?
Answer to Case.4
• No. A minor can be a beneficiary or a
promisee .
Free Consent
• Meaning of “Consent” [Sec.13]
Consent means acquiescence or an act of
assenting to an offer.
“Two or more persons are said to

consent when they agree upon the
same thing in the same sense”.
What is Free Consent ?
• Meaning of “Free Consent”[Sec.14]
• A consent is said to be free when it is not caused
by-
1.Coercion as defined in Sec15, or
2.Undue Influence in Sec.16 or
3.Fraud as defined in Sec.17,or
4.Misrepresentation as defined n Sec.18 or
5.Mistake, subject to the provisions of Sec.20,21
or Sec.22].
Coercion [Sec.15]
• When a person is compelled to enter in to a contract by the
use of force by the other party or under a threat,
“coercion”is said to be employed.
• Coercion is the committing or threatening to
commit, any act forbidden by the Indian Penal
Code,1860 or unlawful detaining, or threatening to
detain, any property, to the prejudice of any
person whatever, with the intention of any person
to enter in to an agreement.(Sec.15).Examples
are…….
Examples of Coercion
1. A threatens to shoot B if he (B)
does not release him (A) from a
debt which A owes to B.
B releases A under the threat.
The release has been brought
about by Coercion.
…Examples of Coercion
2 .A threatens to kill B if he does not lend Rs.1,000 to C. B
agrees to lend the amount to C. The agreement entered in
to under coercion. Consent is said to be caused by
coercion when it is obtained by:
(a) Committing or threatening to commit any act forbidden by

the Indian Penal Code,1860. Example…
A threatens to shoot B if he (B) does not lend
Rs 500.B lends the amount.The threat amounts to coercion.
Examples of Coercion
2. Unlawful detaining or threatening to detain any property.
• An agent refused to hand over the account of a

business to the new agent unless the principal
released him from all liabilities. The principal had to
give a release deed as demanded.
• Held, the release deed was voidable at the option
of the principal.
[Muthia vs. Muthu Karuppa, (1927)Madras High Court]
Effect of Coercion
• When consent to an agreement is caused by
coercion, fraud or misrepresentation, the
agreement is a contract voidable at the option of
the party whose consent was so caused (Sec.19).
• According to Sec.72, a person to whom money

has been paid, or anything delivered by mistake or
under coercion, must repay or return it.
Threat to commit suicide-Does it amount to coercion?
Chikham Amiraju vs. Seshamma (1917) Madras HC.
• In this case, a person held out a threat of

committing suicide to his wife and son if they did not
execute a release in favor of his brother in respect
of certain properties. The wife and son executed
the release deed under the threat.
• Held, “ the threat of suicide amounted to coercion
within Sec.15 and the release deed was, there
fore, voidable”.
Threat to commit suicide-Does it amount to coercion?
[Purabi Mukherjee vs. Basudev Mukherjee(1969)Calcutta]
• I was observed that, “one committing suicide places himself

or herself beyond the reach of the law, and necessarily
beyond the reach of any punishment too.
• But it does not follow that suicide is not forbidden by the
Penal Code.Sec.306 of the Penal Code punishes
abetment of suicide.Sec.309 punishes an attempt to commit
suicide.
• Thus suicide as such is no crime, as indeed, it cannot be.
But its attempt is: its abetment too is. So, it may very well
be said that the Penal Code does forbid suicide.” As such
a threat to commit to suicide amounts to coercion.
Duress
• In the English Law, the near equivalent of
the term “coercion” is “duress”. Duress
involves actual or threatened violence over
the person of another (or his wife, parent, or
child) with a view to obtaining his consent
to the agreement.
• If the threat is with regard to the goods or
property of the other party, it is not duress.”
UNDUE INFLUENCE
Section 16(1)
• Definition:
“A contract is said to be induced by
‘undue influence’ where the relations
subsisting between the parties are such
that one of the parties is in a position
to dominate the will of other and uses
that position to obtain an unfair
advantage over the other.”
UNDUE INFLUENCE
Section 16(1)
• A person is deemed to be in a position to dominate the the will of another.
(a) Where he holds real or apparent authority over the
other.E.g.,the relationship between master and servant,
doctor and patient.
(b) Where he stands in a fiduciary relation.[Relation of trust and
confidence] to the other. E.g., father and son, solicitor and
client, trustee and beneficiary, and promoter and company.
(c) Where he makes a contract with person whose mental
capacity is temporarily or permanently affected by reason of
age, illness or bodily distress. E.g., Between a medical
attendant and his patient.
Difference Between
Coercion and Undue Influence
• 1.The consent is given under the • 1.The consent is given by a person
threat of an offence who is so situated in relation to
another that the other person is
(Forbidden by Indian Penal Code) in a position to dominate the will
of the other.
• 2.Coercion is mainly of physical
character.(Violent force) • 2.Undue influence is of moral
character.(Mental pressure)
• 3.It involves criminal act.
• 3.No criminal act is involved.
• 4.There must be an intention of
causing any person to enter in to • 4.Uses to obtain an unfair
advantage over the other.
contract.
Examples of UNDUE INFLUENCE
• 1. A having advanced money to his son, B

during during his minority, obtains upon
B’s coming of age, by misuse of parental
influence, a bond from B for a greater
amount than the sum due in respect of
the advance. A employs undue influence.
• 2. A spiritual guru induced his devotee to

gift to him the whole of his property in
return of a promise of salvation of the
devotee.
Held, the consent of the devotee was
given under undue influence
[Mannu Singh vs.Umadat Pandey (1890)]
• 3.An illiterate elderly woman made a
deed of gift of practically the whole of
her property to her nephew who
managed her affairs.Held, the gift should
be set aside on the ground of undue
influence.
[Inche Noriah vs.Shaikh Allie Bin Omar(1929)]
Misrepresentation
• A statement of fact which one party makes in the
course of negotiations with a view to inducing the
other party to enter in to a contract is known as a
representation.
• It may be expressed by words spoken or written or
implied from the acts and conduct of the parties.
• A representation when wrongly made, either
innocently or intentionally, is a misrepresentation.
MISREPRESENTATION & FRAUD
• Misrepresentation may be-
(I) An innocent or unintentional
misrepresentation, or
(II) An intentional, deliberate or willful
misrepresentation with an intent to deceive
or defraud the other party.
The former is called “MISREPRESENTATION” and the
latter “FRAUD”
MISREPRESENTATION
• “Misrepresentation” is a
misstatement of a material fact
made innocently with an honest
belief as to it’s truth or non-
disclosure of a material fact, without
any intent to deceive the other
party.
Examples of Misrepresentation
• 1. A while selling his mare to B, tells him that
the mare is thoroughly sound. A genuinely
believes the mare to be sound although he
has no sufficient ground for the belief. Later
on B finds the mare to be unsound. The
representation made by A is a
misrepresentation.
Examples of Misrepresentation
• 2.A company’s prospectus contained a
representation that it had statutory powers to run
it’s tramways by steam provided the consent of a
Government authority was obtained.
• The directors issued a prospectus stating there in
that the permission for the use of steam power
would be granted. The permission was refused. The
company was then wound up.
• Held, the directors were guilty of misrepresentation
and not of fraud.
[Derry vs .Peek (1889)]
Requirements of MISREPRESENTATION
• 1.It must be a representation of material fact.Mere

expression of opinion does not amount to misrepresentation
even if it turns out to be wrong.
• 2.It must be made before the conclusion of the contract with
a view to inducing the other party to enter in to contract.
• 3.It must be made with the intention that it should be acted
upon by the person to whom it is addressed.
• 4.It must actually have been acted upon and must have
induced the contract.
• 5.It must be wrong but the person but the person who made
it honestly believed it to be true.
Requirements of MISREPRESENTATION
• 6.It must be made without any intention to deceive the other party.
• 7.It need not be made directly to the plaintiff.A wrong statement of facts
made to a third party with the intention of communicating it to the
plaintiff,also amounts to misrepresentation.
E.g., A told his wife within the hearing of their daughter that the bridegroom
proposed for her was a young man.The bridegroom, however, was a over
sixty years.The daughter gave her consent to marry him believing the
statement by her father.Held, the consent was vitiated by
misrepresentation and not fraud.
[Babul vs.Singh(1968)Patiala High Court]
FRAUD
• “Fraud” exists when it is shown that,
(1) a false representation has been made
(i) knowingly, or
(ii)without belief in it’s truth, or
(iii)recklessly, not caring whether it is true or false, and
(iv)the maker intended the other party to act upon it. or
(2) there is a concealment of material fact.
………..FRAUD
• The intention of the party making

fraudulent misrepresentation must
be to deceive the other party to the
contract or to induce him to enter in
to a contract.
………..FRAUD
• According to Sec.17. “fraud” means and includes any of the following
acts committed by a party to a contract:
1.The suggestion that a fact is true when it is not true and the person making
the suggestion does not believe it to be true;
2.The active concealment of a fact by a person
having knowledge or belief of the fact;
3.A promise made without any intention of performing it;
4.Any other act fitted to deceive;
5.Any such act or omission as the law specially declares to be fraudulent.
ESSENTIAL ELEMENTS OF FRAUD
• 1.There must be a representation and it must be false:
E.g.,The prospectus of a company did not refer to the
existence of a document disclosing liabilities.This
gave the impression that the company was
prosperous.If the existence of the document had
been disclosed the impression would have been
different.Held, non disclosure of information
amounted to fraud and any one who purchased
shares on the faith of this prospectus could avoid the
contract.
[Peek vs.Gurney(1873)]
…………ESSENTIAL ELEMENTS OF FRAUD
• 2.The representation must relate to a material fact which

exists now or existed in the past.
(i)A sells some spoons to B and makes the following
statements.The spoons are as good as that of X.
[This is a statement of opinion].
(ii) The spoons have as much silver in them as that of X
[This is a statement of fact]
(iii) The spoons are the best available in the market for the price.
[This is a puffing statement].
• 3.The representation must have been made

before the conclusion of the contract with the
intention of inducing the other party to act
upon it.
• 4.The representation must have been made
with a knowledge of it’s falsity or without
belief in it’s truth or recklessly, not caring
whether it is true or false.
• 5.The other party must have been induced to act upon the
representation or assertion.A mere falsehood is not enough
to give a right of action.
Eg., A bought shares in a company on the faith of a prospectus
which contained an untrue statement that one B was a
director of the company.A had never heard of B and,
therefore, the statement was immaterial from his point of
view.A’s claim for damages in this was dismissed because the
untrue statement had not induced A to buy the shares.
[Smith vs.Chadwick(1884)]
• 6.The other party must have relied upon the

representation and must have been deceived.If
representation does not come to the notice of a
party, it cannot be said to have misled that party
because it does not lead that party at all.
• 7.The other party, acting on the representation or
assertion, must have subsequently suffered some
loss.
Contracts not necessarily voidable
-Exceptions.
• When consent to an agreement is caused by coercion, fraud or
misrepresentation, the agreement is a contract voidable at the option of
the party whose consent was so caused.But in the following cases, the
contract is not voidable:
• 1.Where the consent of a party to a contract was caused by
misrepresentation or fraud and that party could discover the truth by
ordinary diligence.
E.g., A by misrepresentation, leads B erroneously to believe that five hundred
tonnes of indigo are made annually at his factory.B examines the accounts
of the factory,which show that only four hundred tonnes of indigo have
been made.After this B buys the factory.The contract is not voidable on
account of A’s misrepresentation.
MISTAKE
• Mistake is erroneous belief about something.
It may be a (1) Mistake of law, or (2) Mistake of fact.
• (1)Mistake of law: It may be….
(a) Mistake of law of the country
(b) Mistake of law of foreign country
• (2) Mistake of fact: Mistake of fact may be,
(a) Bilateral Mistake, or
(b) Unilateral Mistake.
MISTAKE OF LAW
Example of (1) Mistake of law of the country
• A party cannot be allowed to get any relief on the

ground that it had done a particular act in ignorance
of law. A mistake of law is, therefore, no excuse, and
the contract cannot be avoided.
• E.g., A and B enter in to contract on the erroneous belief that
a particular debt is barred by Indian Law of Limitation. This
contract is not voidable.
But, if a person enters in to a contract by making a mistake of law
through the inducement of another, whether innocent or
otherwise ,the contract may be avoided.
MISTAKE OF LAW
…… (2) Mistake of law of a foreign country
• Such a mistake is treated as

mistake of fact and the
agreement in such a case is
void (Sec.21).
…………….MISTAKE of Fact
• Bilateral Mistake: Where both the parties to an agreement
are under a mistake as to a matter of fact essential to the
agreement, the agreement is void [Sec.20].It may be Bilateral
or Unilateral Mistake
• Bilateral Mistake: It may relate to ……
(a)Subject mater,or (b) Possibility of performance
(a) Subject matter may relate to ………………..
(i)Existence (ii)Price (iii)Quantity (iv) Quality
(v) Identity or (vi) Title.
(b) Possibility of performance :It may relate to,
(i) Physical, or Legal impossibility.
Bilateral Mistake
• The following two conditions have to be fulfilled.
1.The mistake must be mutual:
E.g., A agreed to purchase B’s motor car which was lying down in B’s
garage.Unknown to either party, the car and garage were completely
destroyed by fire a day earlier.The agreement is void.
2.The mistake must relate tom a matter of fact essential to the agreement:
E.g.,A man and woman entered in to a separation agreement under which a
man agreed to pay a weekly allowance to the woman, mistakenly believing
themselves lawfually married.Held, the agreement was void as there was
mutual mistake on a point of fact which was material to the existence of
the agreement.
[Galloway vs.Galloway(19141)].
……Bilateral Mistake
• :
The various cases whish fall under Bilateral mistake are as follows.
1.Mistake as to the Subject matter:
(a)MISTAKE AS TO THE EXISTENCE OF THE SUBJECT MATTER.
E.g., A agrees to buy a horse from be a certain horse.It turns out that the horse was
dead at the time of the bargain, though the neither party was aware of the
fact.The agreement is void.
(b) MISTAKE AS TO THE IDENTITY OF THE SUBJECT MATTER:
E.g., W agreed to buy from R a cargo of cotton “to arrive ex-peerless from
Bombay”.There were two ships of that name sailing from Bombay.One sailing in
October and the other in December.W meant the former ship and R, the
latter.Held, there was a mutual or bilateral mistake and there was no
contract.[Rafles vs.Wichelhaus(1864)]
….Bilateral Mistake
• …………………………………………………1.BILATERAL MISTAKE:
(c) MISTAKE AS TO THE QUALITY OF THE SUBJECT MATER:
E.g., Table Napkins were sold at an auction by y description “with the crest of
Charles 1 and the authentic property of that monarch”.In fact the napkins
were Georgian.Held the agreement was void as there was a mistake as to
the quality of the subject matter.
[Nicholson &Venn vs.Smith Mariott(1947)]
(d) MISTAKE AS TO THE QUANTITY OF THE SUBJECT MATTER:
E.g., A silver bar was sold under a mistake as to it’s weight.There was a
difference in value between the weight as it was and as it was supposed to
be.Held, the agreement was void. [Cox vs.Prentice(1815)]
….Bilateral Mistake
• …………………………………………………1. BILATERAL MISTAKE:

(e) MISTAKE AS TO THE TITLE OF THE SUBJECT MATTER:
E.g., A person took a lease of a fishery which, unknown to either party, already
belonged to him.Held, the lease was void.
[Cooper vs.Phibbs (1815)]
(f)MISTAKE AS TO THE PRICE OF THE SUBJECT MATTER.

E.g., C wrote to W offering to sell certain property for 1,250 pounds.He had earlier
declined an offer from W to buy the same property for 2000 pounds.W Who knew
that this offer of 1,250 pounds was a mistake for 2,250 pounds, immediately
accepted the offer.Held, W knew perfectly well that that the offer was made by
mistake and hence the contract could not be enforced. [Webster vs.Cecil(1861)]
…………….MISTAKE
• Unilateral Mistake: Where only one of the parties is under a
mistake as to a matter of fact, the contract is not
voidable(Sec.22).
• E.g., A offers to sell his house for Rs.44,000.By mistake he
makes an offer in writing for Rs..40,000.He cannot plead
mistake as a defense.
• There are however, two exceptions.
Regarding the (i) identity of the person contracted
with.(ii)Nature of contract.
…………….MISTAKE
• (I )Mistake at to the identity of the person contracted with:
E.g. If A intends to enter in to a contract with B, C cannot give
himself any right in respect of the contract by accepting the
offer. In such a case the contract is void.
• (ii)Mistake as to the nature of the contract:
Where a person is made to enter in to a contract through the
inducement of another but through no fault.
E.g., M, an old man of poor sight, endorsed a bill of exchange
thinking that it was a guarantee. Held, there was no contract
on the ground that the mind of the signer did not accompany
the signature [Foster Vs. Mackinson (1869)]
Legality of Object
• An agreement is a contract if it is
made for a lawful consideration and
with a lawful object (Sec. 10)
• Every agreement of which the
object or consideration is unlawful
is void.
…Legality of Object
• The consideration or object of an agreement is
unlawful, if-
it is forbidden by law; or if it is of such a nature
that, if permitted it would defeat the provisions
of any law; or it is fraudulent; or it involves or
implies injury to the person or property of
another; or the Court regards it as immoral, or
opposed to public policy.
• No action is allowed on an illegal agreement.

Void Agreements
• A void agreement is one which is not enforceable by law.
[Sec.2(g)]
• The following agreements are declared to be void.
1.An agreement made by incompetent persons (Sec.11).
2.Agreement made under mutual mistake of fact (Sec.20)
3.Agreements the consideration or object is unlawful
(Sec.23)
4.Agreements the consideration or object is unlawful in part.
(Sec.24)
5.Agreement made without consideration is void ( Sec.25)
…………….Void Agreements
6.Agreement in restraint of marriage (Sec.26)
7.Agreement in restraint of trade (Sec.27)
8.Agreement in restraint of legal proceedings (Sec.28)
9.Agreement the meaning of which is uncertain
(Sec.29)
10.Agreement by way of wager (Sec.30)
11.Agreement contingent on impossible events
(Sec.36)
12.Agreement to do impossible acts. (Sec.56)
Wager / Wagering Agreement [Sec.30]
• A wager is an agreement between two parties

by which one promises to pay money or
money’s worth on the happening of some
uncertain event in consideration of the other
party’s promise to pay uncertain event in
consideration of the other party’s promise to
pay if the event does not happen.
…Wager or Wagering Agreement [Sec.30]
• “The essence of gambling and wagering is that

one party is to win and the other to lose upon
a future event, which at the time of the
contract is of an uncertain nature, that is to
say, if the event turns out one way, A will lose
but if it turns out the other way he will win”.
[Thacker Vs. Hardy(1878)]
…Wager or Wagering Agreement [Sec.30]
• “It is essential to a wagering agreement that each

party under it either win or lose, whether he will
win or lose being dependent on the issue of the event,
and therefore remaining uncertain until that issue
is known, if either of the parties may win but cannot
lose, or may lose but cannot win, it is not a wagering
agreement”.
Mrs. Carlill vs. Carbolic Smoke Ball Co.(1892)
Essentials of a wagering Agreement
• 1.Promise to pay money or money’s worth

• 2.Uncertain event
• 3.Each party must stand to win or lose.
• 4.No control over the event
• 5.No other interest in the event
The following transactions however are, not wagers
• 1. A crossword competition involving a good measure of skill

for it’s successful solution
• 2.Games of skill, e.g., picture puzzles or athletic competitions
• 3.A subscription or contribution or an agreement to subscribe
or contribute toward any plate (a cup or other prize for a race
or other contest), prize or sum of money of the value of
Rs.500 or above to be awarded to the winner or winners of a
horse race (Exception to Sec.30)
• 4.Share market transactions in which delivery of stocks and
shares is intended to be given and taken.
• 5.A contract of insurance.
Contingent Contracts
• Contingent contract is a contract to do something, if
some event, collateral to such contract, does or
does not happen.
• Characteristics of a contingent contract.
1.It’s performance depends upon the happening or
non happening in future of some event.
2.The event must be uncertain.
3.The uncertain future event must be collateral to the
contract.
Performance of Contract
• The parties to a contract either perform or offer to perform
their respective promises.
• By whom the contract must be performed ?

(a) By promisor himself
(b) By agent
(c) By legal representative
(d) By joint promisors
…Performance of Contract
• Who can demand performance ?
(a) It is only promisee himself.

In case of his death, the legal representative, who can
demand performance.
(b) In case of joint promisees , any of the joint
promisees can demand performance.
When all promisees die , the legal
representatives of all the diseased persons can
demand performance.
Discharge of Contract
• A contract is said to be discharged when the obligations
created by it come to an end.
The various modes of discharge of contract are as follows:
1.Discharge by performance
2.Discharge by agreement or consent
3.Discharge by impossibility
4.Discharge by lapse of time
5.Discharge by operation of law
6.Discharge by breach of contract.
…Discharge of Contract
• The rule of law in this regard is as follows:
“ Eodem modo quo quid constituitor, eodem
modo destituitor ” i.e., a thing may be
destroyed in the same manner in which it is
constituted.
This means a contractual obligation may be
discharged by agreement which may be express
or implied.
…DISCHARGE OF CONTRACT
• 1. Discharge by performance:
It takes place when the parties to a contract
fulfill their obligations arising under the
contract within the time and the manner
prescribed. The performance may be.
(i) Actual Performance or
(ii) Attempted Performance [Tender]
……..DISCHARGE OF CONTRACT
• 2. Discharge by agreement or consent:
The contract rests on the agreement of the

parties. The parties may get discharged from
the obligations of performance of contract by
agreement or mutual consent
Discharge.. of Contract
2.Discharge by agreement or consent: The discharge by consent may be
express or implied. Discharge by consent –
• (a) Novation : When a new contract is substituted for an

existing one, either between the same
parties or between the one of the parties
and the third party.
• (b) Rescission: When all or some of the terms of contract are
cancelled.
• (c) Alteration : When one or more terms of the contract is/are
altered by the mutual consent of the
parties to a contract.
……2.Discharge by agreement or consent
• (d) Remission: Acceptance of a lesser fulfillment of the

promise made
• (e) Waiver: Intentional relinquishment or giving up of a right

by a party entitled thereto under a contract.
• (f) Merger: When an inferior right accruing to a party under a

contract merges in to a superior right accruing to
the same party under a new contract.
Discharge.. of Contract
• The law does not recognize what is
impossible; and
• What is impossible does not create an
obligation
Discharge …of Contract
• 3.Discharge by impossibility:
Impossibility of performance may be-
(1) Initial impossibility or
(2) Supervening impossibility.
(1) Initial impossibility:

An agreement to do an impossible
act in itself is void.
……Discharge of Contract
(2)Supervening impossibility :
Impossibility which arises subsequent to the formation of
contract (which could be performed at the time when the
contract was entered in to) is called supervening
impossibility. The cases covered by of supervening
impossibility include:
(a) Destruction of the subject mater
(b) Non-Existence or non-occurrence of a
particular state of things
(c) Death or incapacity for personal service
(d) Change of law, &
(e) Outbreak of war
The contract is discharged in these cases.
• The following cases are not covered
by supervening impossibility:
(a) Difficulty of performance
(b) Commercial impossibility
(c) Failure of a third person on whose work the
promisor relied
(d) Strikes, lock outs and civil disturbances
(e) Failure of one of the objects
The contract is not- discharged in these cases.
…Discharge of Contract
• 4.Discharge by lapse of time:
If the contract is not performed within the period of
limitation and if no action is taken by the promisee in a law
court, the contract is discharged.
• 5.Discharge by operation of law:
This includes discharge by,
(a) death
(b) merger
(c) insolvency
(d) unauthorized alteration of the terms of a written agreement, and
(e) rights and liabilities becoming vested in the same person.
• 6.Discharge by breach of contract:
If a party breaks his obligation which the contract
imposes, there takes place breach of contract.
Breach of contract may be, (a) Actual or (b) Anticipatory breach.
(1) Actual breach of contract may occur,
(a) at the time when the performance is due, or
(b) during the performance of the contract.
(2)Anticipatory breach of contract occurs when a party
repudiates his liability or obligation under the contract before
the time for performance arrives.
Remedies for
Breach of Contract
• In case of breach of contract, the injured party has one or
more of the following remedies:
1.Suit for RESCISSION: Rescission is the revocation of contract.
When there is breach of a contract by a party , the injured
party may sue to treat the contract as rescinded. He is also
absolved of all the obligations under the contract.
2.Suit for DAMAGES: Damages are monetary compensation
awarded to the injured party by Court for the loss or injury
suffered by him.
The foundation for modern law of damages, both in India and
England, is to be found in the case of Hadley vs. Baxandile .
2.Hadley vs.Baxandile(1854)
• X’s mill was stopped by the breakdown of a shaft. He
delivered the shaft to Y, a common carrier, to be taken to a
manufacturer to copy it and make a new one. X did not make
known to Y that delay would result in loss of profits. By some
neglect on the part of Y the delivery of the shaft was delayed
in transit beyond a reasonable time (so that the mill was idle
for a longer period than otherwise would have been the case
had there been no breach of the contract of carriage).
• Held, Y was not liable for loss of profits during the period of
delay as the circumstances communicated to Y did not show
that a delay in the delivery of the shaft would entail loss of
profits to the mill.
2.Damages may be of four types:
• (1) Ordinary Damages: These are damages which actually

arise in the usual course of things from the breach of a
contract.
• (2) Special Damages: Damages which arise from unusual
circumstance known to both the parties to the contract are
called special damages.
Damages which may reasonably be supposed to have been in
the contemplation of both the parties at the time when they
made the contract as the probable result of the breach of it,
are known as special damages and may be recovered.
…..Damages may be of four types:
• 3.Vindictive or Exemplary or Punitive Damages:

These damages are allowed in case of the breach of a
contract to marry or dishonor of a cheque by a
banker wrongfully.
• 4.Nominal Damages: Where the injured party has
not suffered any loss by reason of the breach of a
contract, the Court may award a very nominal sum
as damages.
3.Suit upon QUANTUM MERUIT:
[As much as earned]
A right to sue on a quantum meruit (as much as

earned) arises where a contract, partly
performed by one party, has become
discharged by the breach of the contract by
the other party.
This right is founded on the implied promise by
the other party arising from the acceptance of
a benefit by that party.
Liquidated Damages and penalty.
• ‘Liquidated damages’ represent a sum, fixed

or ascertained by the parties in the contract,
which is a fair and genuine pre estimate of the
probable loss that might ensue as a result of
breach. A ‘penalty’ is a sum named in the
contract at the time of it’s formation, which is
disproportionate to the damage likely to
accrue as a result of breach the Courts in India
allow only ‘reasonable compensation’.
4.Suit for Specific Performance
• 4.Specific Performance :In certain cases

the Court may direct the party in terms
of the contract to actually carry out the
promise, exactly according to the terms
of the contract. This is called “specific
performance of the contract”.
Injunction
• Injunction: It is a mode of securing the

specific performance of the negative
terms of a contract.
Module.III
INTELLECTUAL PROPERTY LAWS:
Patents Act,1970
• Intellectual property law awards to inventors, artists and
institutions certain exclusive rights to produce, copy,
distribute and license goods and technologies.
• IPR s provide incentives to inventors to develop new
knowledge and to authors and artists to create forms of
artistic expression. Thus, over time there are dynamic gains
from the introduction of new products, information and
creative activities.
• But from the perspective of efficiency, they are only a second means of
encouraging invention, because the market exclusively conferred by IPR s
reduce current competition and may therefore lead to a static distortion
in the allocation of resources. Patents and copyrights have limited term,
which minimizes the costs of market exclusivity.
Source: Intellectual Property and Development: Pp.3 The World Bank,2005
Module.III
INTELLECTUAL PROPERTY LAWS:Patents Act,1970
• BACKGROUND:
The term ‘property’ poses different meaning
to different people.
To a scientist ‘property’ means “identifiable
characteristics or elements of matter”, to
an economist it may mean “any means of
production”, but to a lawyer it is equivalent
to a “bundle of rights”.
Understanding of the importance of
STONE
• Perhaps as soon as the earliest human being
just used a big stone to kill the enemy,
human being understood the importance of
‘stone’ in the early monolithic age itself and
started collecting stones to protect himself.
Perhaps with this ‘urge for belonging’
heralded the birth of the concept of
property.
Attributes of ‘Property’
• 1.It is scarce [limited]

• 2.It possesses value
• 3.Availability through acquisition or possession
• 4.Inherent quality of satisfying possessiveness
• 5.Uniqueness of uses
SOURCE: Intellectual Property/MBL/NLSIU,Bangalore

Introduction to Intellectual Property
• The immaterial product of a man’s brains may

be valuable as his land or his goods.
• The law, therefore, gives him a proprietary
right in it, and the unauthorized use of it by
other persons is violation of his ownership,
and considered not less than theft.
Intellectual Property [I.P.] Laws
NEED FOR IP PROTECTION: No one can deny the importance of
individual’s intellectual ability to positively contribute to the wealth and
human happiness.
SOURCES OF I.P. LAWS: I.P. laws are comparatively new in origin. Britain
obviously was the first country to search for a legal regime to protect
intellectual property. Patent system had it’s origin in the royal grants
under it’s prerogative.
It finally came within the domain of legislation in 1624.
[a] Attempts to globalize the I.P. l regime: Paris Convention,1883
[b] National Statutes
[c] Judicial Decisions
ECONOMIC CONSIDERATION
SOURCE: Intellectual Property/MBL/NLSIU,Bangalore
• 1.NATURE OF INTELLECTUAL PROPERTY RIGHT:

Intellectual property right is a right exclusively designed in law to own,
possess, produce, reproduce, sale, give license or otherwise dispose of.
2.ECONOMICS OF IPR: All IPR s create monopoly and the result would
be;
(a) the inventor can use the economies of scale to maximize his return so
that he gets back the amount invested in R&D by way of maximum
return;
(b) the inventor, as a monopolist can determine the quantity he has to
produce in order to maximize his profit;
© the inventor having the monopoly power, can himself regulate the
market in different ways like reducing production to charge more,
creating shortage in supply or take a long term policy decision in favor of
expanding investment on regional consideration to create an artificial
scarcity in certain regions to exploit the market conditions.
Statutory Framework
• 1.Indian Patents Act. 1970 regulating patents;
[Process, Products, Apparatus, Capable of Industrial application].
• 2.The Copy Right Act. 1957;

[Musical work, Artistic work, Literary work, e.g., books, periodicals].
• 3.The Designs Act.1911; [Shapes and Ornamentation]
• 4. The Trade and Trade Marks Act, 1958;
[Marks used to distinguish goods-words, signs or combinations ,
formulae, patterns, methods, programs, techniques, or compilations of
information that provide one’s business with a competitive advantage].
Global Influence
• The I.P. statutes reflect the legal philosophy of IPR protection. However,
this legal philosophy has become largely globalized with the GATT
Agreement in 1994 containing the TRIPS (Trade Related Intellectual
Property Rights) Agreement.
• Besides, there exist several other conventions on various
areas like:
(i) Patent and Trade Mark: Paris Convention,1883 for
Protection of Industrial Property.
(ii) Copyright: The Berne Convention,1971,
The Universal Copy-Right Convention
(iii) Washington Treaty on Intellectual Property in respect
of Integrated Circuits.1989 and also there is WIPO.
IMPORTANCE OF
INTELLECTUAL PROPERTY
• A] Social Benefits:
Recognition of intellectual property is important
because an inventor or a creator of an idea may
keep it secret either consciously or unconsciously.
Consciously because he wants to exploit his idea fully
through keeping the matter a trade secret.
If he consciously wants to maximize his advantage by
keeping the trade secret, he also runs the danger of
‘reverse engineering’ and consequential non-
protection.
…….IMPORTANCE OF
INTELLECTUAL PROPERTY
B] New Ideas and New Markets:

New dimension and new ideas have as a rule opened
up new markets for consumer and industrial goods.
C] Role of Intellectual Property in Development:

The rewards granted to the innovator / creator of ideas
are reflected by the benefits which the innovation/
creation confers on the consumer.
HISTORY AND PHILOSOPHY OF
PATENT PROTECTION
• The word patent originated from the Latin word ‘patene’
which means ‘to open’ . The English Crown had the practice
of addressing open letters to all it’s subjects notifying them of
the grant of monopoly rights or privileges to individuals in
respect of inventions.
• The rights and privileges by means of ‘open letters’, i.e.,
documents on which the royal seal were intended for public
view. Open letters were intended for display and inspection
by any interested party. The language of government in
medieval England was Latin and Latin for open letter is
litterate patente. As English slowly took over from Latin as
official language, the documents became known as ‘letters
patent’ and later just ‘patents’.
HISTORY AND PHILOSOPHY OF
PATENT PROTECTION
• Justification for the Patent System:
(i) Patents as an instrument of justice to the inventor
(ii) Patents as aiding industrial growth
• Aiding Industrial Growth: Swan Committee (England,1946) identified

four benefits from exclusive rights in an invention.
(i) It encourages research
(ii) It induces an investor to disclose his or her discoveries
(iii) It rewards investment for inventions up to the stage at
which they are commercially practicable
(iv) It provides an inducement to invest capital in new lines
of production
Patent as an asset
• Patent = Property (E.g., House Property)
• Use = Live
• Sell = Sell
• License = Rent
• Mortgage = Mortgage
• Abandon = Abandon
Inventor
• In all countries except U.S.A the first to file is
entitled to a patent; who first invented is not the
criteria.
• A consideration in U.S.A- first to invent is entitled to
a patent, who first filed is not a criteria.
• Proper maintenance of records in chronological
order in an accepted format is essential to establish
patent-ship.
Who can apply for patents ?
• First and true inventor of the invention.
• An assignee of the first and true inventor
• Legal representative of any deceased person
who was entitled to make such an application
before his death.
• The true and first inventor can have others as
joint applicants.
Patents
• Patents are granted to individuals and organizations
who can lay claim to a new product or manufacturing
process , or to an existing product or process which
was not previously known.
• The granting of patent gives the ‘patentee’ a
monopoly to make , use, or sell the invention for a
fixed period of time.
PATENT ……
• In technical language, it is an official document

conferring an excusive right or privilege on the
inventor of a new thing or process of manufacture
for a term of years to use or sell his invention. After
the expiry of the term of the patent, it becomes
public juris (of public right) i.e., any member of the
public can manufacture that thing or article. The law
relating to parents in India is contained in the
Patents Act,1970 which is based on the English
Patents Act of 1949.
• The Act extends to the whole of India (Sec.1)
What is patent ?
• “A patent is an exclusive right granted for an
invention, which is a product or a process that
provides, in general, a new way of doing
something , or offers a new technical solution
to a problem.
In order to be paten-table, the invention must
fulfill certain conditions”.
-World Intellectual Property Organization (WIPO)
What does a patent do ?
• A patent provides protection for the
invention to the owner of the patent.
The protection is granted for a
limited period, generally 14 years.
How to keep patents alive ?
• To keep patents in force, a yearly fee has to be paid.
• The fee goes up with the age of the patent
• Failure to pay fees within the prescribed time leads
to lapse of the patent.
• Patents cannot be renewed at the end of their
lifetime when they lapse.
• The patent then becomes open to all and be used
by anyone without the fear of infringement.
Advantages of obtaining a patent
• 1.The patentee gets exclusive right to use his invention.

• 2.The patentee can bring a suit for infringement of his
patent.
• 3.If the patentee does not have the means or is not
himself in a position to work the invention patented
commercially, he can sell his patent and grant licenses
to others to exploit, and thereby earn money.
• 4.The holder of an exclusive license would have the rights of
the patentee. He would also be able
to enforce such rights.
…Advantages of Obtaining a Patent
5.The patentee can make improvements in or

modification in an invention described or
disclosed in the complete specification of the
main invention and obtain the grant of a patent
for the improvement or modification as a
“patent of addition”.
A patent of addition remains in force as long as
the patent for the invention remains in force.
• 6. The grant of a patent enables the inventor to obtain an
official record of his inventor-ship from the Government.
Important Definitions
• CONTROLLER[Sec.2(1) (b)]. “Controller” means

Controller-General of Patents, Designs and Trade
Marks.
• EXCLUSIVE LICENSE [Sec.2(1)(f)]. It means a license
from a patentee (grantee or proprietor of patent)
which confers on the license and persons authorized
by him, any right in respect of the patented
invention. The right of the licensee must be to the
exclusion of all others (including the patentee
himself) .“ Executive license” shall be construed
accordingly.
…….Important Definitions
• INVENTION [Sec.2(1)(f). It means a new product or process

involving an inventive step and capable of industrial
application. The three basic requirements of an invention are:
manner of manufacture, novelty and utility. Manufacturing
primarily denotes the making of something out of some
material, by application of power in transformation of the
material and art and skill in the process of that improves,
restores or preserves a saleable product.
If the starting material remains unaltered by the process and the
product also remains the same as the starting material, the
process cannot be called a manufacture for the purpose of
patent-ability.
• PATENT [Sec(1) (m)]: It means a patent under the

Patents Act, 1970.
• PATENTED ARTICLE AND PATENTED PROCESS

[Sec.2(1) (o)]:They mean respectively an article or
process in respect of which a patent is in force.
• PATENTEE[Sec.2 (1)(p)]: “Patentee” means the

person for the time being entered on the Register as
the grantee or proprietor of the patent.
• Medicine or drug[Sec.2(1)(l)] includes-

(1)All medicines for internal or external use of human beings or
animals;
(2)All substances intended to be used for or in the diagnosis,
treatment, mitigation or prevention of diseases in human
beings or animals;
(3) All substances intended to be used for in the maintenance of
public health, or the prevention or control of any epidemic
disease among human beings or animals;
Cont’d………….[Medicine or drug[Sec.2(1)(l)] includes-]

(4) Insecticides, germicides, fungicides, weedicides and
all other substances intended to be used for the
protection or preservation of plants;
(5)All chemical substances which are ordinarily used as
intermediates in the preparation or manufacture of
any of the medicines or substances referred to
above.
• PERSON[Sec.2(1) (s)]: “Person” includes the

Government.
• PERSON INTERESTED[Sec.2(1)(t)]: “Person
interested”
includes a person engaged in, or in promoting,
research in the same field as that to which the
invention relates.
• TRUE AND FIRST INVENTOR [Sec. 4(1)(y)]:

“True and first inventor” is a person who first
made the invention and applied for the
patent.
It does not include either the first importer of
an invention in to India, or a person to whom
an invention is first communicated from
outside India.
…………TRUE AND FIRST INVENTOR
[Sec. 4(1)(y)]:
• Cont’d………….[TRUE AND FIRST INVENTOR [Sec. 4(1)(y)]]
If two persons have independently made the

same invention and neither has used it or
disclosed it to the world, the one who applies
first for the patent is considered in law the
true and first inventor, although the other
might have made it earlier in time.
INVENTIONS NOT PATENTABLE
[Sec.3 to 5 of Indian Patent Act,1970]
• WHAT ARE NOT INVENTIONS(SEC.3)
• It is not in public interest to grant rights in
respect of certain items, e.g., discovery of a
scientific principle, or an invention injurious
to public health, or a process for the
treatment of human beings, animals or
plants, or a method of agriculture or
horticulture.
Cont’d ….[What is not PATENTABLE in India ?]
The following are therefore not inventions within the meaning of

his Act and hence non patent-able:-
(a) Trifling invention: i.e., an invention which is frivolous or
which claims anything obviously contrary to well-
established natural laws.
(b) Invention prejudicial to public order or environment, i.e.,
an invention, the primary or intended use or commercial
exploitation of which, could be contrary to public order or
morality or which causes serious to human,animal or plant
life or health or to the environment.
(c) Scientific principle or abstract theory

i.e., the mere discovery of a scientific principle or the
formulation of an abstract theory, or discovery of any living
thing or non-living substance occurring in nature.
(d) Discovery of new property or use of a known substance,
i.e., the discovery of any new property or new use for a
known substance or of the mere use of a known process,
machine or apparatus.If the known process results in a new
product or employs at least one new reactant( a chemically
reacting substance), it will be an invention.
e) Admixture, i.e., a substance obtained by a mere

admixture( mixing with something) resulting only in
the aggregation of the properties of the components
thereof or a process for producing such substance.
(f) Arrangement , re-arrangement or duplication, i.e., the
mere arrangement omitted by Amendment Act,2002
or re-arrangement or duplication of known devices,
each functioning independently of one another in a
known way.
• (g) Omitted by Amendment Act,2002

• (h) A method of agriculture or horticulture
• (i) A process of treating human beings or animals, i.e., any
process for the medicinal, surgical,curative
prophylactic (preventing of disease diagnostic,
therapeutic, or other treatment of human beings or
any process for a similar treatment of animals to
render them free of disease or to increase their
economic value or that of their products.
• (j) Plants and animals, i.e., plants and animals in

whole or any part thereof other than micro-
organisms but, including seeds varieties and species
and essentially biological process for production or
propagation of plants and animals.
• (k) Mathematical program i.e., a mathematical or
business method or a computer program per se or
algorithms
• (l) Literary program i.e., a literary, dramatic, musical

or artistic work or any other aesthetic creation
whatsoever including cinematographic works and
television productions.
• (m) Mental act or method of playing game i.e., a
mere scheme or rule or method of performing
mental act or method of playing game.
• (n) A presentation of information.

• (o) Topography of integrated circuits
• (p) Traditional knowledge, i.e., an invention
which in effect or traditional knowledge or
which is an aggregation or duplication of
known properties of traditionally known
component or components.
• Inventions relating to atomic energy not patent-

able(Sec.4)
No patent shall be granted in respect of an invention

relating to atomic energy.
Process and Product Patent
• (1) Meaning of Process Patent: Process patent means
that when a substance is invented or produced a patent is not
granted to the substance itself but it is only the method or
the process of manufacture of a substance that is granted a
patent.
• (2) Cases where only Process patent is available :It
must be remembered that under the scheme of the Indian
Patent Act,1970, Patent is granted not for the benefit of the
Patentee but for the benefit of the public at large.Therefore
Indian Patent Act,1970 provides only a process patent in particular cases.
….Process and Product Patent
• (3)Product Patent and Mandate under the G.A.T.T:
In product patents, patent is granted not to the method or
process of manufacture of a substance but to the substance
itself.
Therefore, it is the “product” that is covered by the patent.
Under the Patents Act, 1970 both product and process
patents are available in India.Now India is a signatory to the
Agreement on Trade Related Intellectual Property
Rights(TRIPS), India is under obligation to provide Product
patents to all inventions
APPLICATION FOR PATENTS
[Sec.6 to 11]
• Application entitled to apply for patents(Sec.6):

An application for a patent for invention may be made by any of
the following persons,singly or jointly, that is to say-
1.By any person claiming to be the first and true inventor of the
invention;
2.By the person being the assignee of the person claiming to be
the true and first inventor in respect of the right to make such
application;
3.By the legal representative of any diseased person who
immediately before his death was entitled to make such an
application.
[Sec.6 to 11]
Form of Application (Sec.7)

• Application for one invention only.
• Application by assignee to be accompanied by
proof of right to apply.
• Applicant to be in possession of invention
• Specifications
[Sec.6 to 11]
Information and undertaking regarding foreign applications(Sec.8)

Where an applicant for a patent under this Act is prosecuting an application for a
patent in a foreign country in respect of the same or substantially the same
invention, he shall file along with his application-
• (1) A statement setting out detailed particulars
• (2)An undertaking that, up to the date of the acceptance of his complete
specification filed in India
The Controller may also require the applicant to furnish details relating to the
objections, if any, taken to the application filed in a foreign country on the ground
that the invention is lacking in novelty or patent-ability, the amendments effected
in the specifications, the claims allowed in respect thereof and such other
particulars as he may require.
[Sec.6 to 11]
• Provisional and complete specifications(Sec.9)

Time for filing specifications: Where an
application for a patent is accompanied by a
provisional specification, a complete
specifications within 12 months from the date
of filing application. If the complete
application is not so filed, the application shall
be deemed to be abandoned.
[Sec.6 to 11]
• Contents of specifications(Sec.10)
Every specification whether provisional or complete
Shall begin with a title sufficiently indicating the subject matter
to which the invention relates.Every complete specification
shall-
(1)fully describe the invention and it’s operation or use
(2)disclose the best method of performing the invention which is
known to the applicant
(3)end with a claim or claims defining the scope of the invention
for which protection is claimed.
[Sec.6 to 11]
• Section 11 deals with priority dates for each

claim of complete specification.
Examination of Application
[Sec.12 to 24]
• Examination of application(Sec.12)
When the complete specification has been filed in respect of an
application for a patent, the application and the specification
relating there to shall be referred by the Controller to an
examiner for making a report to him in respect of the
following matters, namely-
(1) whether the application and the specification relating there
to are in accordance with the requirements of this Act and of
any rules made there under:
……..Examination of Application
[Sec.12 to 24]
• (2) whether there is any lawful ground of objection to the

grant of the patent under this Act in pursuance of the
application.This will include include an examination as to
formal as formal matters (like the prescribed form, fees to be
paid) and substantive maters(patent-ability of invention and
specifications);
• (3)The result of investigations made for prior claim
• (4)any other matters which may be prescribed
The examiner shall ordinarily make report to the Controller
within a period of 18 months of such reference.
Refusal of application (Sec.15)
• Where the Controller is satisfied that the application or any

specification filed in pursuance thereof does not comply
with the requirements of this Act or any rules made there
under, the Controller may either,
(a) Refuse to proceed with the application; or
(b) Refuse the application, specification or drawings to be
amended to his satisfaction before he proceeds with the
application.
If it appears to the Controller is not an invention, or
non-patent-able then he shall refuse the application.
Infringement of Patents [Sec.104-117]
• This Act grants statutory right to patentee, his agents and

licensees to work or exploit the invention. If some other
person violates these and encroaches upon their rights, it
amounts to infringement.
• Burden of Proof.
In any suit for infringement of a patent, where the subject mater
of a patent is a process for obtaining a product, the Court may
direct the defendant to prove that the process used by him to
obtain the product, identical to the product of the patented
process, is different from the patented process.
Penalties [Sec.118-124]
• For unauthorized claim of patent rights-fine
up to Rs.10,000
• Falsification of entries in Registry etc-
Imprisonment up to 2 years or fine of
Rs.10,000 or both.
The IPR tools can help to preserve the rights of the innovator
against wrongful use by others.
• Various features of the Gillette’s non-electric razor are

protected by 17 patents, which are displayed on the
pack.Gillette, as a name, is a registered trademark in several
countries. Similarly, the U.S-based Golden Valley Microwave
Food Inc.’s Micro-wave Popcorn is protected by number of
U.S patents.
• Globally, patent related disputes and their settlement is on
the rise.
• A sum of $800 million was exchanged in 1994 by way of
licensing fees compared to $300 million in 1991.Texas
Instruments earned $1.2 billion for licensing IPRs.
LAW OF TRADEMARKS
[Trade & Merchandise Marks Act,1958]
• Introduction:
When a person sells his goods under a particular
trade mark he acquires a kind of limited exclusive right to use
the mark in relation to those goods.
• Trade Mark as Intellectual Property:
Trade Mark for long has been identified and grouped along with
patent, design and copy right as a form of intellectual
property.
Trade Marks have gained recognition as signifying property rights on the
basis of that the owner of the trade mark acquired value in the mark by
it’s constant use.
FUNCTIONS OF TRADE MARK
• It gives an indication to the purchaser about

the identity of the manufacturer or the quality
of the goods.
• It gives the purchases a satisfactory assurance
of the quality.
The purchaser simply would make his purchase on the
implicit faith of the mark being genuine and that it possesses
a quality equal that previously found with same trade mark.
Where does the statute step in ?
• The statute, i.e., Trade and Merchandise Marks

Act,1958(herein after TMM) codifies the law and provides for
registration of trade marks already in use and even those
proposed to be used.Hence the statute recognizes ownership
of trade marks,and provides various rights there in.
• In broad terms, the TMM provides for the following:
1.Nature of rights a person can acquire in respect of TM
2.Mode of acquisition and method of transfer of rights
3.Nature of infringements and remedies.
Statutory Definitions
• 1.Trade Mark:Trade Mark in India is governed by the Trade and Merchandise Marks
Act,1958.A trade mark is defined under section 2(1)(v) as follows..
“Trade Mark” means a registered trade mark or a mark used to
in relation to goods for the purpose of indicating or so as to
indicate a connection in the course of trade between the
goods and some person having a right as proprietor to use
the mark.
• 2.Under Section 2(1)(j) “mark” includes a device, a brand,
heading, label, ticket, name, signature, word, letter or
numeral or any other combination thereof.
…Statutory Definitions
• 3. “Goods” Goods are simply defined under
TMM Act
as “Anything which is the subject of trade or
manufacture”.
• 4. “Name” A name includes any abbreviation
of a name according to to Section 2(1)(b) of
the TMM Act.
• 4.3 Different Types of Trade Marks:
1.Letter Mark: Mark includes letter mark
under Section2(1)(j) of the Act. The identity
created out of letter forms have been very
useful elements for designers to work with
and develop successful mark. Some popular
examples of letter marks as trade marks are
IBM, GM, 3M, ELBEE etc.
• 4.3 Different Types of Trade Marks
2.Symbol:Symbols may take the shape of brands or
logos.A logo is a visual depiction of a manufacturer
or a company and gives an identity to it.Today logos
are identified by consensus as symbols that belong to
a particular company and as representing
quality,elegance etc.The best example of popular
logo as a trade mark are those of Daimler Benz,
BMW etc.
3.Brand:Brands refer to those kinds of

marks which are branded on goods
themselves constituting the trade
mark.For example, Cycle brand of
Agarbathis or Camel Brand Safety
Matches.
4. Label and Ticket:Label means a composite mark containing
various features including devices, words, usually painted on
paper and attached to the goods themselves.The label may
contain ,apart from the trademark even matter which does
not have the trade mark value. A ticket may be said to be a
label attached to goods by a string etc.The exact distinction
between label and ticket is not very clear.
5.Color Combinations: Color schemes can also constitute
marks within the definition of the Act.
6.Containers: In one of the cases, it was pointed out that, a
container would not fall within the definition of the
mark.Therefore for registration of trade mark ,it is necessary
for an applicant to show the mark in two dimensions, so that
others may more readily know what they must not use in two
dimensions.
• Certified Trade Mark Sec.2(1)(c):Certified Trade
Mark means a mark adopted to distinguish in
the course of trade, goods certified by any
person in respect of origin, material, mode of
manufacture, quality, accuracy, or other
characteristics, from goods not so certified
and registrable.
Rights conferred upon registration:
• Rights include;
*Right to use
*Right to license
*Right to sell
*Right to sue (upon infringement).
Unregistered Trade Mark
• The 1958 Act does not make marks
compulsorily registrable.Therefore, there is no
ban on a person using the mark without being
registered.
Remedies for Infringement of Unregistered Mark
• If a MARK is unregistered under the 1958 Act then

the civil remedies provided by the Act for
infringement of trade marks cannot be availed by the
person who has been using such unregistered
mark.Section.27(1) provides that, “no person shall
be entitled to institute any proceedings to prevent
or recover damage for infringement of an
unregistered trade mark”.
Unregistered Trade Mark and
Goodwill
• Trade mark is always considered as an inseparable
part of goodwill of business, as a part of which it is
used.
• The 1958 Act has also incorporated the common law
principle in Section38(1) which reads as follows, “An
unregistered trade mark shall not be assignable or
transmissible except along with the goodwill of the
business concerned”.
Table of Prohibited Marks
Section.11(a) A mark, use of which is likely to

deceive or cause confusion
11(b) A mark use of which would be
contrary to any law for the time
being in force.
11(c) A mark comprising or containing
scandalous or obscene matter.
11(d) A mark comprising or containing any
matter likely to hurt the religious
sentiments of any class or section of the
citizens of India
Table of Prohibited Trademark
Section A mark disentitled to

11(e) protection on a court of law
12(1) A mark identical or
deceptively similar to a
trade mark actually
registered in respect of the
same description
13 A word which is unaccepted
name.
Ownership of Trademark and
Rights of Owners
• Registration is not a pre-condition to assume
ownership of trade mark.The ownership in a
mark can be acquired by it’s use on specified
goods or on registration under the Act in
respect of particular goods or particular class
of goods.
IPR Laws: Copyrights
• Introduction: General Meaning.
Copyright means an exclusive right given
by law for certain period, to an author or
composer of work conferring him the
right to produce copies of work.
• Object of Copyright:
Copyright deals with the protection of rights of
various types of works, yielding from the
intellectual labor of human being.Therefore it
can be considered as a reward of labor.
The object of copyright is to encourage
authors, artists and composers to
produce original works by rewarding
them with exclusive rights for a limited
period.
• Relevance of Copyright Law: Copyright
protection is essential to encourage
exploitation of copyrighted work for the
benefit of the public by entrepreneurs,
like publishers, film producers, or sound
recorders.
• International Implications of Copyright Law:
Copyright has gained international dimension
because being an intellectual property it is
transferred more easily and quickly across
national boundaries.The speed with which
intellectual property can be copied today has
led to large scale infringement of copyrights
• Nature of Copyright:Copyright-purely a statutory right.
Negative and multiple nature of Copyright:
The copyright law essentially concerns itself
with the negative right of preventing copying
or multiplication of material covered under
the copyright, so as to protect the writer,
composer or artist from unlawful
reproduction and exploitation.
• What to be protect by Copyright:
For a work to be protected under the copyright
there must be sufficient “skill, labor and
judgment” or “selection, Judgment and
Experience”.
Copy protects the skill and labor employed by
the author.
Lord Atkinson in
Macmillan vs.Cooper(1924) pointed out that,
• “it is the product of labor,skill and capital of one man

which must not be appropriated by another, not
elements, the raw materials, if one may use the
expression, upon which the labor,skill and capital of
the first have been expended to secure copyright for
his product. It is necessary that the labor, skill and
capital expended should be sufficient to import to
the product some quality or character which the raw
material did not possess and which differentiate the
raw material from product”.
Copyrights
• Copyright protects form and not
idea.
• Work must be in a permanent
form.
• Copyright must be distinguished
from monopoly right.
FERA, 1973
The FERA came in to force on 1st January,1974
It extends to the whole of India and to the branches and agencies of overseas
Indian companies including Indian citizens.It seeks to regulate in
particular;
• 1.The assets held in India by non-residents
• 2.Holding immovable property outside India by Indians
• 3.Employment of foreign nationals, and repatriation of foreign currency,
• Establishment or place of business in India, and
• 5.Acquisition, holding, etc of business interest and immovable property in
India
FERA, 1973
• Objectives of FERA:
1.To regulate dealings in foreign exchange and securities, as well as
transactions indirectly affecting foreign exchange;
2.To regulate imports and exports of currency and bullion;
3.To conserve foreign exchange resources of the country
4.To regulate holding of immovable property of Indians outside India
5.To regulate acquisition, holding,etc, of immovable property by non-
residents in India;
6.To regulate employment of foreign national in India
The Foreign Exchange Management Act, 1999
• Introduction: FEMA, 1999 replaces the FERA,1973.

• FERA aimed at having stringent controls to conserve India’s
foreign exchange.
• FERA amended in 1993 to bring about certain changes, as a
result of introduction of economic reforms and liberalization
of the Indian economy.
• But it was soon realized that FERA had by and large outlived
it’s utility in the changed economic scenario and there fore
was replaced by FEMA in 1999.
FERA(1973) VS FEMA(1999)
• 1.To consolidate and • 1.To consolidate and

amend the law amend the law relating
regulating the(then to foreign exchange
existing) law relating with the objective of
facilitating external
foreign exchange and trade and payments
for the conservation of and development &
the FX resources of the maintenance of FX
country market in India
• 2.FERA focused on • 2.Whereas, FEMA

control of foreign focused on
exchange management of foreign
• 3. FERA almost exchange
prohibited almost all • 3.All current account
foreign exchange transactions are
transactions unless permissible by the law
there was general itself.
specific permission
• 4.Under FERA, however, • 4.FEMA is a civil law

the offence was of unlike FERA.The
criminal nature. contravention of
provision under FEMA
will be dealt with
through civil procedure.
• 5. Under FERA there • 5.The burden of proof

was a presumption of under FEMA will be on
existence of a guilty the enforcement agency
mind, unless the and not on the person
accused proved implicated.
otherwise.
• 6.Offences under FERA, • 6.Offences under FEMA

were subjected to are compoundable by
penalty as well as paying penalty.
severe imprisonment. FEMA prescribes an
elaborate redressal
machinery for total
justice and fairness to
the person implicated.
Definitions [Section.2]
• AUTHORIZED PERSON:
It means an authorized dealer, money
changer, off-shore banking unit or any
other person for the time being
authorized under the law to deal in
foreign exchange or foreign securities.
Export
Export means,
• (I) ‘taking out of India to a place outside
India any goods’,
• (ii) ‘Provision of services from India to
any persons outside India’.
Import
• Import means bringing in to India any goods
or services.
CURRENCY
• This expression includes all currency notes, postal
notes, postal orders, money orders, checks
(cheques), drafts, traveler (checks) cheques, letters
of credit, bill of exchange and promissory notes,
credit cards or such other similar instrument may be
notified by the Reserve Bank.RBI has notified ‘debit
cards’ ‘ATM’ cards or any other instrument by
whatever, name called that can be used to create a
financial liability, as ‘currency’.
CURRENCY NOTES
• It means and includes cash in the form of
coins and bank notes.
Foreign Exchange
• It means foreign currency and include:
(i)deposits credits and balances payable in any foreign currency;
(ii)drafts, travelers’ cheques, letters of credit or bills of exchange
expressed or drawn in Indian currency but payable in any
foreign currency;
(iii)drafts, travelers’ cheques, letters of credit or bills of exchange
drawn by banks, institutions or persons outside India, but
payable in Indian currency.
Person
• A ‘person’ includes: (i) an individual,(ii) a Hindu
Undivided family, (iii) company
(iv) a firm,(v) an association of persons or body of
individuals, whether incorporated or not (vi) every
artificial judicial person, not falling within any of the
preceding sub clauses, (vii) any agency, office, or
branch owned or controlled by such persons.
Person Resident Outside India
• It means a person who is not resident in India.
Foreign Security
• Any security in the form of shares, bonds,
debentures, or any other instrument
denominated or expressed in foreign currency
and includes securities expressed in foreign
currency.
Duties of authorized person
• 1.To comply with RBI directions
• 2.Not to engage in unauthorized transactions
• 3.To ensure compliance of FEMA provisions
• 4.Duty to produce books accounts etc.
Powers of RBI
• Sec.12(1) empowers RBI to cause an
inspection to be made, by an officer of the RBI
specially authorized in writing by RBI of the
business of any authorized person as may
appear it ti be necessary.
Powers of the Authorized Person
• 1.To deal in or transfer any foreign exchange or
foreign security
• 2. Receive any payment by order or on behalf of any
person resident outside India in any name.
• 3.To open NRO,NRE,NRNR, NRSR and FCNR accounts.
• 4.To sell or purchase foreign exchange for current
account transactions
Regulation and Management of
Foreign Exchange
It prohibits any person other than an authorized person
from
• (a) dealing in or transferring any foreign exchange or
foreign security to any person or
• (b) by making any payment to or to the credit of any
person resident outside India in any manner; or
•
…..Regulation and Management of
Foreign Exchange
• © receive otherwise than through an authorized
person any payment by order or on behalf of any
person resident outside India in any manner,
• (d) entering in to any financial transactions in India as
consideration for or in association with acquisition or
creation or transfer of a right to acquire, any asset
outside India by any person.
Holding of Foreign Exchange
• Section.4 provides that except as otherwise
provided in the Act; no person resident in
India shall acquire, hold, own possess or
transfer any foreign exchange, foreign security
or any immovable property situated outside
India.
Module.IX
Competition Act,2002
[Competition Law]
• In pursuit of globalization, India has responded by

opening of it’s economy, by removing controls and
resorting to liberalization.
• The natural corollary of this is that the Indian market
should be geared to face competition from within
the country and from outside.
• MRTP Act,1969 had become obsolete and hence
replaced by Competition Act 2002.
The objectives of
Competition Act,2002
• 1.To prevent practices having adverse

effect on competition;
• 2.To promote and sustain competition in
market;
• 3.To protect the interest of consumers;
• 4.To ensure freedom of trade carried on
by other participants in markets in India.
Important Definitions
Under Competition Act, 2002
• Acquisition[Sec.2(a)].It means, directly or

indirectly, acquiring or agreeing to acquire-
(i) shares, voting rights or assets of
any enterprise
(ii) control over management or
control over assets of any enterprise.
Definitions
• Agreement[Sec.2(b)].It includes any arrangement
or understanding or action in concert-
(i) Whether or not, such arrangement, understanding
or action is formal or in writing; or
(ii) Whether or not such arrangement, understanding
or action is intended to be enforceable by legal
proceedings.
Definitions
• Consumer[Sec.2(f)]. “Consumer” means any person who-
(i) Buys any goods for a consideration.The consideration may have been
paid or promised or partly paid and partly promised, or under any
system of deferred payment.
“Consumer” includes any user of the goods other than the person who
buys them for consideration paid or promised to be paid in the above
manner.When such use is made with the approval of the owner, it
makes no difference whether the purchase of goods is for resale or for
any commercial purpose or for personal use;
(ii) Hires or avails of any services for a consideration.
(iii) Consumer includes any beneficiary of services.
Definitions
• Enterprise[2(h)].It means a person or a department of the
Government, who or which is, or has been or is proposed to
be, engaged in any activity, relating to the-
(i)production,storage,supply,distribution, acquisition, or control
of articles or goods, or
(ii)provision of services of any kind, or
(iii)investment, or in the business of acquiring, holding,
underwriting or dealing with shares, debentures or other
securities of any other body corporate, either directly or
through one or more of it’s units or divisions or subsidiaries.
Definitions
• Goods[2(i)]. “Goods” means goods as defined in
the Sale of Goods Act,1930 and includes-
(A) Products manufactured, processed or mined.
(B) Debentures, stocks and shares after allotment;
(C) In relation to goods supplied, distributed or
controlled in India, goods imported in India.
Definitions
• Person[Sec.2(l)]. “Person” includes-
(i) an individual;
(ii) a Hindu undivided family;
(iii) a company
(iv) a firm;
(v) an association of persons or a body of
individuals, whether incorporated or not, in
India or outside India; [cont’d..]
Definitions
[ being cont’d..]
• (vi) any corporation established by or under any Central,
State or Provincial Act or a Government Company as defined
in the Sec.617 of the Companies Act, 1956;
• (vii) any body corporate incorporated by or under the laws
of a country outside of India;
• (viii) a co-operative society registered under any law
relating to co-operative societies;
• (ix) local authority; and
• (x) every artificial judicial person, not falling within any
of the preceding sub-clauses.
Definitions
• Price[Sec.2(o)]”Price” in relation to the sale of any
goods or to the performance of any services,
includes every valuable consideration, whether
direct or indirect, or deferred.It also includes any
consideration which in effect relates to the sale of
any goods or to the performance of any services
although ostensibly relating to any other matter or
things.
Definitions
• Relevant Market[2(r)]:It means a market
which may be determined by the
Competition Commission with reference
to the relevant product market or the
relevant geographic market or with
reference to both the markets.
Definitions
• Relevant Geographic Market [Sec.2(s):It means a
market comprising the area in which the
conditions of competition for supply of goods
or provision of services or demand of goods or
services are distinctly homogeneous and can
be distinguished from the conditions
prevailing in the neighboring areas .
Definitions
• Relevant Product Market [Sec.2(t)]: It means a
market comprising all those products or
services which are regarded as
interchangeable or substitutable by the
consumer, by reason of characteristics of the
products or services, their prices and intended
use.
Definitions
• Services[Section2(u)].It means service of any description
which is made available to potential users. It includes the
provision of services in connection with business of any
industrial or commercial matters such as accounting, banking,
communication, education, financing, insurance, chit funds,
real estate, transport, storage,material treatment , processing,
supply of electrical or other energy, boarding, lodging,
entertainment, amusement, construction, repair, conveying of
news or information and advertising.
Definitions
• Shares[Sec.2(v)]. It means shares in the capital of a company
carrying voting rights and includes-
(i) any security which entitles the holder to receive shares with
voting rights;
(ii) stock except where a distinction between stock and share is
expressed or implied.
Trade[Sec.2(x)].It means any trade, business industry,
profession or occupation relating to the
production,supply,distribution,storage or control of goods and
includes the provision of any services.
Definitions
• Turnover [Sec.2(y)].
It includes value of sale of goods or
services.Words and expressions used but
defined in this Act and defined in the
Companies Act, 1956 shall have the same
meanings respectively assigned to them in
that Act [Sec.2(z)].
Prohibition of certain agreements, abuse of dominant position
and regulation of combinations
[Chapter II-Sec. 3 to 6]
• SECTION.3 provides for prohibition of entering in to anti-competitive
agreements.
• SECTION.4 prohibits abuse of dominant position by any enterprise.
• SECTION.5 deals with combination of enterprises and persons:
Acquisition of one or more enterprises by one or more persons or
acquiring of control or merger or amalgamation of enterprises under
certain circumstances specified, shall be construed as combination.
• SECTION.6 provides that no person or enterprise shall enter in to
combination which is likely to cause or causes an appreciable adverse
effect on competition within the relevant market in India.
Anti-Competitive Agreements (Sec.3)
• Sec.3 provides that no enterprise or person shall enter in to

any agreement in respect of production, supply, distribution,
storage acquisition or control of goods or provision of
services, which causes or likely to cause an appreciable
adverse effect on competition within India. This rule applies
to association of enterprises and association of persons while
entering in to any such agreement[Sec.3(1)]
• Any agreement entered in to contravention of the provisions
contained in Sec.3(1) shall be void[Sec.3(2)]
• Adverse effect on competition:Any agreement entered in to

between enterprises or associations of enterprises or persons
or association of persons or between any person and
enterprise or practice carried on, or decision taken by, any
association of enterprises or association of persons, including
cartels, engaged in identical or similar trade of goods or
provision of services, which-
• (a) directly or indirectly determines purchase or sale prices;
……….Anti-Competitive Agreements
• (b) limits or controls production, supply, markets, technical

development, investment or provision of services;
• © shares the market or source of production or provision of
services by way of allocation of geographical area of market,
or type of goods or services or number of customers in the
market or any other similar way;
• (d) directly or indirectly results in bid rigging or collusive
bidding.
Shall be presumed to have an appreciable adverse effect on
competition.
• “Bid rigging” means any agreement, between enterprises or

persons referred to above engaged in identical or similar
production or trading of goods or provision of services, which
has the effect of eliminating or reducing competition forbids
or adversely affecting or manipulating the process for
forbidding.
• “Cartel” includes an association or producers, sellers,
distributors, traders or service providers who, by agreement
amongst themselves, limit, control or attempt to control the
production, distribution, sale or price of, or trade in goods or
provision of services[Sec.3(3)].
• An agreement which causes or is likely to cause an

appreciable adverse effect on competition, includes the
following agreements also:
(a) tie- in arrangement; requiring a purchaser of goods, as a
condition of such purchase, to purchase some other goods
(b) Exclusive supply agreement; restricting in any manner the
purchaser in the course of his trade from acquiring or
otherwise dealing in any goods other than those of the
seller.
[cont’d]……….An agreement which causes or is likely to cause
an appreciable adverse effect on competition, includes the
following agreements also;
© Exclusive supply agreement; to limit,restrict or withhold the
output or supply of any goods or allocate any area or
market for the disposal or sale of the goods.
(d) Refusal to deal; restricts by any method the persons or
classes of any persons to whom goods are sold or from
whom goods are bought.
(e) Resale price maintenance: Any agreement to sell goods on
condition that the prices to be charged on the resale by the purchaser
shall be the prices stipulated by the seller unless it is clearly stated
that prices lower than those prices may be charged [Sec.3(4)].
Horizontal Practices
• Horizontal merger: Two firms in the same industry
merge
• Horizontal Price Fixing(Collusion):Explicit or implicit
agreements in an industry to control prices.
• Price Discrimination:Charging customers different
prices that are not justified by cost differences of
serving these customers.
• Predatory pricing: Selling at price below cost to drive
out arch rival firms.
Vertical Practices
• Refusal to deal: A manufacturer refuses to sell to distributor
or retailer.
• Exclusive dealing:A manufacturer grants another firm an
exclusive right to distribute a product.
• Exclusive Territory:A manufacturer grants an exclusive
territory to a seller and no other is permitted to sell in that
territory.
• Retail Price Maintenance: A manufacturer sets a minimum
price below which a retailer cannot sell.
[Non-application of Section.3]
Section.3 does not apply to-
• 1.The right of any person to restrain any infringement of, or to

impose reasonable conditions, as may be necessary for
protecting any of his rights which have been conferred under
the Copy rights Act,1957,Patents Act,1970, the Trade and
Merchandise Marks Act, 1958, the Trade Marks Act, 1999, the
Geographical indications of Goods(Regulation and Protection)
Act,1999, the Designs Act, 2000 and Semi Conductor
Integrated Circuits Layout Designs Act,2000.
Competition Commission of India
[CCI]
Establishment of commission(Sec.7): With effect from
such date as the Central Govt. may appoint, there
shall be established, for the purposes of this Act, a
Commission to be called the “Competition
Commission of India”.
Corporate body:It shall be a body corporate.
Offices: The head office shall be at a place as the
Central Govt. may decide from time to time.
Composition of Commission(Sec.8)
• A chairperson and not less than two and not more than ten members to be
appointed by the Central Govt.
• The Central Govt. shall appoint the Chairperson and the members during the
first year of operation.(Sec.8(1))
• Qualifications:The Chairperson and every member shall be he persons of
ability,integrity and standing, who-
(a) are, or have been, or qualified to be , a Judge of a High Court;
(b) Have special knowledge of, and professional experience in, not less than 15
years, international trade, economics, business, commerce, law, finance,
accountancy, management, industry, public affairs, administration or in any
other matter which, in the opinion of the Central Government, be useful to the
Commission(Sec.8(2))
(c) The chairperson and other members shall be whole time members.(Sec.8(3)).
CCI
• Selection of Chairperson and other Members(Sec.9)
• Term of office of Chairperson and other Members(Sec.10)
Vacancy and Oath of Office
• Resignation, Removal and Suspension of Chairperson and other
members(Sec.11)
• Restriction on employment in certain cases (Sec.12)
• Salary and Allowances(Sec.14)
• Vacancy not to invalidate the proceedings of the Commission(Sec.15)
• Appointment of Director General, etc.(Sec.16)
salary and appointment
• Registrar and officers and other employees of he Commission(Sec17).
Duties, Powers and Functions of
Commission
• Duties(Sec.18)
1. To eliminate practices having adverse effect on
competition
2. To promote and sustain competition
3. To protect the interest of the consumers
4. Ensure of freedom of trade carried by other
participants, in markets in India.
Consumer (Protection) Act,1986
• Law relating to consumer protection is contained in the Consumer Protection
Act,1986. Act applies to all the goods and services.
• The objects of the Act are as follows:
1.BETTER PROTECTION OF INTERESTS OF CONSUMERS.
2.PROTECTION OF RIGHTS OF CONSUMERS:

IT SEEKS TO PROMOTE AND PROTECT THE RIGHTS OF
CONSUMERS SUCH AS-
a) Right to protection against marketing of goods or
services which are hazardous to life and property;
The objects of the Act are as follows:
2.PROTECTION OF RIGHTS OF CONSUMERS.IT SEEKS TO PROMOTE AND PROTECT
THE RIGHTS OF CONSUMERS SUCH AS-
[being Cont’d……]
b)Right to be informed about the quality, quantity,
potency, purity, standard and price of goods or
services so as to protect the consumers against unfair
trade practices;
c)Right to be assured, wherever possible, access to
goods and services at competitive prices;
d) Right to be heard and to be assured that consumers’
interest will receive due consideration at appropriate
forums;
The objects of the Act are as follows:
e) Right to seek redressal against unfair trade practices or

restrictive trade practices or unscrupulous exploitation
of consumers; and
f) Right to consumer education.
• 3.Consumer Protection Councils.
• 4.Quasi-judiciary machinery for speedy redressal of consumer
disputes.
a) to give relief of a specific nature, and
b) to award, wherever appropriate, compensation to
consumer.
COPRA TERMS: Definitions
• 1.Appropriate laboratory[Sec.2(1)]
• 2.Complainant[Sec.2(1) (b)]
• 3.Complaint[Sec.2(1) ©]
• 4.Consumer[Sec.2(1)(d)]
• 5.Consumer Dispute[Sec.2(1)(e)]
• 6.Defect [Sec2(1) (f)]
• 7.Deficiency[Sec.2(1)(g)]
• 8.District Forum[Sec.2(1)(h)]
• 9.Goods[Sec.2(1) (i)]
• 10.Manufacturer[Sec(1)(j)]
COPRA TERMS: Definitions
• 11.National Commission[Sec.2(1) (k)]

• 12. Person[Sec.2(1)(m) ]
• 13.Restrictive trade practice[Sec.2(1)(n)]
• 14.Service[Sec2(1)(o)].
• 15.State Commission[Sec.2(1)(p)]
• 16.Trader [Sec.2(1) (q)]
• 17.Unfair trade practice[Sec.2(1) ®]
Consumer Protection Council
[Sec.4 to 6]
• The Central Consumer Protection Council

Establishment [Sec.4]
Membership
Procedure for meeting of the Central Council [Sec.5]
Objects of the Central Council(Sec.6)
• The State Consumer Protection Council [Sec.7 & 8]
Establishment (Sec.7)
Membership
Meetings
Time and place of meetings and procedure.
Consumer Disputes Redressal Agencies
• (a) a Consumer Disputes Redressal

Forum (District)
• (b) a Consumer Disputes Redressal
Commission(State)
• © a National Consumer Disputes
Redressal Commission (National).
The Information Technology Act,2000
• The modern age is the age of computers, new communication

systems and digital technology.
• International trade through the medium of
e-commerce has been growing rapidly in the fast few years
and many countries have switched over from traditional
paper based commerce to e-commerce.
• The United Nations Commission on International Trade
Law(UNICITRAL) adopted the Model Law on Electronic
Commerce in 1996.The Model provides for equal legal
treatment of users of electronic communication and paper
based communication.
The Information Technology Act,2000
• The IT Act,2000 was by both the

houses of parliament, and it received
the assent of the president on the 9th
June,2000.It came in to force on 17
th October, 2000.The Act extends to
the whole of India.
Offences
[Sec65-78]
• Tampering with computer source documents:(Sec.65)
If any person knowingly or intentionally conceals, destroys or
alters or intentionally or knowingly causes another to conceal,
destroy or alter any computer source code used for a
computer, computer program. Computer system or computer
network, when the computer source code is required to be
kept or maintained by law for the time being in force, he shall
be punishable with imprisonment up to 3 years, or with fine
which may extend to Rs.2,00,000 or with both.
Offences
• Hacking with computer system(Sec.66).
Who ever intent to cause or knowing that he is likely to cause
wrongful loss or damage to public or any person destroys or
deletes or alters any information residing in a computer
resource or diminishes it’s value or utility or affects it
injuriously by any means, commits hacking.Whoever commits
hacking shall be punished with imprisonment up to 3 years, or
with fine which shall be punished with imprisonment up to 3
years, or with fine which may extend up to Rs.2,00,000 or
with both.
Publishing of information which is obscene in electronic
form(Sec.67).
• Who ever publishes or transmits or causes to be published in the
electronic form, any material which is luscious(lustful,lewd) or appeals to
the prurient(exciting to lasciviousness) interest or if it’s effect is such as to
tend to deprave and corrupt persons who are likely, having regard to all
relevant circumstances, to read, see or hear the matter contained or
embodied in it, shall be punished.On first conviction he shall be
punishable with imprisonment of either c and with fine,which may extent
to Rs.1,00,000.In the event of a second or subsequent conviction he shall
be convicted with imprisonment of either description for a term which
may extend to 10 years and also with fine which may extend Rs.2,00,000.
Power of Controller to give directions
(Sec.68)
• Power of Controller to give directions(Sec.68).
The controller may, by order, direct a certifying Authority or any
employee of such authority to take such measures or cease
carrying on such activities as specified in the order if those are
necessary to ensure compliance with the provisions of this
Act, rules or any regulations made there-under.Any person
who fails to comply with any such order shall be guilty of an
offence and shall be liable on conviction to imprisonment for
a term not exceeding 3 years or to a fine not exceeding
Rs.2,00,000 or to both.

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V BBM ‘B’ BUSINESS LAW CLASS

• Law includes all those rules and

• The object of law is order, and the result of

• ‘Ignorantia juris non excusat’

• Business laws are those laws which

• 1.English Mercantile Law

• The law of contract is regulated by Indian Contract Act,

• According to Sir William Anson,

Law of contract creates,

• Section 2(h) of Indian Contract Act, 1872

• An agreement enforceable by law is a

• A promise is defined thus:

• An agreement, to become a contract, must give rise to a legal

• An agreement which gives rise to social obligation is not a

• A social agreement does not give rise to contractual

1.Offer and Acceptance:

• 2.Intention to create legal relationship:

• 5.Free and genuine consent:

7. Agreement not declared void:

8. Certainty and possibility of performance:

• i] Voidable contract: An agreement which is

• Example of Voidable Contract: A promises to

• ii] Void Agreement: An agreement not

• iii] Void Contract:A contract which ceases to be

• iv] Illegal Agreement: An illegal agreement is one

• A contract may be (a) made in writing or by word of mouth, or

(i) EXPRESS CONTRACT: If the terms and conditions of

(iii)QUASI CONTRACT: Strictly speaking Quasi Contract

• (i) Executed Contract

(I) EXECUTED CONTRACT:

• An offer is a proposal by one party to

• E.g., An offer may be made by express

When an offer is made to a particular person, it is

When an offer is made to the world at large, it is called

E.g., Mrs Carlill v. Carbolic Smoke Ball Co.[1893].

• 1.The offer must show an obvious intention on the

• 2.The offeror must make the offer with

• 1.Offer must be such in law is capable of

• 3.An offer must be distinguished from;

• 4.Offer must be communicated..

• 5.Offer must be made with a view to obtaining the assent.

• 6.A statement of price is not an offer.

• Where any special terms are to be

• If it is not done and if the contract is

E.g., A hotel put up a notice in a bed room, exempting

• A deposited a bag in the cloak room of a railway

• If conditions are printed on the back of a ticket, but there

• If the parties have not agreed upon the terms of the

• Boulton bought a hose pipe business from Brocklehurst.

• When an offer is made to world

• An acceptance, in order to be binding, must be absolute and

• c) N offered to buy J’s horse if warranted quiet

• To conclude a contract between the parties,

• ‘F’ offered to buy his nephew’s horse for 30 sterling

• The communication must be according to the mode

• The acceptance to an offer must be given within a

• In a company shares were allotted to a

• If no such intention is present, the acceptance

• Boulton bought a hose pipe business from Brocklehurst.