Sen, Arun Kumar; Mitra, Jitendra Kumar; Mukherjee, Sakti. URI: net// Date: Abstract: Commercial law, also known as business law, is the body of law that applies to the Name: Introductory . Get this from a library! Commercial and industrial law,. [Arun Kumar Sen; Jitendra Kumar Mitra]. commercial law may include within its ambit the Indian Contract Act, ; general principles of law of contract, quasi-contracts, indemnity, guarantee.

Commercial Law By Sen And Mitra Pdf

Language:English, Japanese, German
Published (Last):17.01.2016
ePub File Size:27.49 MB
PDF File Size:15.67 MB
Distribution:Free* [*Registration needed]
Uploaded by: LORETTA

Commercial law (including company law) and industrial law / by Arun Kumar Sen and Jitendra Kumar Mitra; edited by Sakti Mukherjee. By: Sen, Arun Kumar. Sen, Arun Mitra,jitendra mencosulwiemudd.gqpe: application/pdf Commercial And Industrial Law. Home ›; Details for: Commercial law: including company law: and industrial law and industrial law business law / Arun Kumar Sen and Jitendra Kumar Mitra.

Maintenance and champertous agreements are not per se void on ground of public policy. Agreement to stifle criminal prosecutions and marriage brokage agreements are hit by the above provisions. But if lawful part is severable from the unlawful part. A unilateral mistake. Canbank Financial Services Ltd. Misrepresentation may also arise from suppression of vital facts. N o r does a mistake of law affect its validity.

Where there is single consideration for several objects. ONGC v. An agreement among bidders at an auction sale not to bid against one another is not unlawful. The parties to a contract are under obligation to perform the obligations undertaken. For this purpose. Their promises bind their legal representatives in case of their death before performance.

Perpetuity is attached to the legal personalities entering into contracts but not to the commercial or mercantile contracts unless based upon mutual trust and confidence.

A contract is validly discharged by faithful performance.

Prashant Iyengar's Legal Abandonware

Agreements in restraint of marriage. AIR Bom Performance of contracts Parties may provide their terms of bargain as they like. The seller of goodwill may. Sbrihanjena alias Das v.

Need help?

A party to an illegal agreement who has advanced money under it to the other party would be entitled to reclaim it if the illegal purpose has not been. Rohit Dhawan v. The Competition Act. Contract in which the identity and the price of the property were not disclosed. A written agreement to refer disputes to arbitration is valid.

He must make reasonable efforts to procure the permit to fulfil his agreement. Frustration may occur by change in law. Mere strike. The former impossibility is known as initial and the latter supervening. Introduction of the permit system does not absolve the promisor from supplying the goods. Quasi-contract Quasi-contract means a relation between parties. Advent Corp. It Frustration leads to automatic dissolution of the contract and exempts the parties from its performance of further performance without rendering any of them liable for damages.

In the former there is neither offer nor acceptance and the source of liability is the provision of the law. Where it involves dealing with an enemy state. For it becomes impossible of performance. In Gujarat Housing Board v. If the agreement is absolute in its terms. Vipul Corporation AIR Guj it was held that mere denial by the allottees to allow work to be completed is not a case where the object or the purpose of the contract was effected by subsequent event to the extent that it became impossible and impracticable to perform the contract like destroying of the houses by natural calamities or damage to the house to the extent that water proofing would not serve any purpose.

In Nirmala Anand v. In other cases.

O u t b r e a k of war makes a difference to the performance of most contracts. Fibrosa Spolka Akeyjna v. Yet his property is liable in quasi- contract as if there was a real contract to supply the necessaries.

To make him liable. A quasi-c. Moses v. Indian Contract Act avoids the term quasi contract. Quasi-contractual liability is difficult to classify. Fairbain Lawson Combe Barbour Ltd. The minor's liability is not personal. Supply of necessaries: Such remedies in English law are generally different from remedies in contract or tort.

Lord Wright took support from Lord Mansfield's theory of unjust enrichment and observed: Partly it resembles liability under the law of tort as it arises independently of any contract and partly it resembles contract.

Lord Mansfield62 relied upon the latter and held that the liability may be enforced on the principle of unjust enrichment. Sinckir v. But the beginning of 20 th century marked the development of alternative approach. A contractual liability. The latter is a true contract: Brougham AC The interest must subsist at the time of payment.

The measure of bailee's liability is also the measure of the finder's liability. The finder is regarded as if he is a bailee under contract as far as his duties and liabilities are considered. The courts have held that the word mistake includes both.

A payment made under one's own false apprehension that one's interest will be jeopardized if the other party's dues are not paid off cannot be recovered under this provision.

He may become liable for compensation if he uses them. Thus the section does not encourage officious interference in affairs of others. This means that the finder must have animus possidendi. This has led to the judicial view that under law. A mere voluntary payment is not protected. The question of what are "necessaries" is not a pure question of law but a mixed question of law and fact.

The liability arises not under contract but under quasi-contract. Finder of Goods: T h e government must make reasonable compensation for the goods it received under the transaction. Where goods have been supplied to government under a constitutionally void agreement and it has appropriated them. Liability to pay for non-gratuitous act: A mere moral. Payment by a downloader of outstanding taxes on property contracted to be sold to him.

Payment by interested persons: Plaintiff must do something lawfully with the intent to charge remuneration for his services but the defendant must have an option to accept or reject the benefit so conferred upon him. It is immaterial that the supplier was ignorant of the actual need of the minor and the position of the stock with him. They are to be calculated as they. Damages for breach of contract The principal remedies for breach of contract are i damages.

Nominal damages thus will not be allowed unless the plaintiff has suffered some loss. Where there is a breach of contract to supply goods. Section 73 and 74 of the Act deal with the principles of assessment of damages. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. When an obligation resembling those created by contract has been incurred and has not been discharged.

Cases of payments made under forged document. This section deals with unliquidated damages i. It is not every breach but the actual loss which entitles the plaintiff to damages. Section 73 reads: When a contract has been broken.. The section uses the word coercion in the dictionary sense and not in the technical sense of frustration of contract.

Thus tax paid under the mistaken notion that it is legally due. Where in case of a single payment. Explanation—In estimating the loss or damage arising from a breach of contract.

To succeed. Under this provision. Explanation— A stipulation for increased interest from the date of default may be a stipulation by way of penalty. This section also provides that the same principle is applicable where there has been a breach of quasi. Damages will not be granted for remote consequences of the breach. This section deals with liquidated damages.

Damages are. In other words.

Thus where plaintiff sent two books. Explanation— A person who enters into a contract with Government does not necessarily thereby undertake any public duty. Section 74 reads. Exception— When any person enters into any bail-bond. The question arises. The amount of compensation depends upon circumstances among which mental pain and suffering is one factor.

When a contract has been broken. Indemnity and guarantee Sections to of the Act deal with contracts of indemnity and contracts of guarantee.

Loss must be caused by some human agency. A contract by a vendor of immovable property that the vendee would be entitled to recover the amount which he is compelled to pay to a third person to satisfy such person's claim on the property sold. T h e promise of indemnity may be express or implied. Section defines a contract of indemnity as a contract by which one person promises to save the other from loss caused to him by the conduct of the promisor himself or by the conduct of any other person.

Where the amount is deposited by way of earnest money. In the latter case. Thus fire and marine insurance contracts are. The courts. The definition restricts the scope of indemnity to cases where there is a promise to indemnify against a loss caused by the promisor himself or by any other person.

And he will be entitled to recover the same from the guilty party. An indemnity holder promisee is entitled to recover from the promisor all damages and all costs which he was compelled in pay in any suit and all sums which he may have paid under a bonafide and prudent compromise of any such suit. This means. This narrows the meaning of indemnity to loss occasioned by human conduct and excludes loss by natural event.

But there need not be any direct consideration between the surety and the creditor. Where they are bound in different sums still they are liable equally but subject to their respective pecuniary limits. Upon payment or performance of his liability. If a creditor releases one of the sureties. Nor does the surety so released cease to be liable to other sureties. O n such default.

The surety is liable for the payment of interest also under the contract. In every contract of guarantee. A guarantee without consideration is void.

Further if there is no principal debt. Such a contract may be oral or in writing. Co-sureties are liable to contribute equally. The liability of a surety arises on the failure of the principal debtor t o discharge his obligation.

Any change made by the principal debtor and creditor jointly in the terms of the contract without the surety's consent. A guarantee which extends to a series of transactions is called a continuing guarantee. The liability of a surety is co-extensive but not necessarily co-existive with that of the principal debtor.

The guarantor is called the surety. There must be a conditional promise to be liable on the default of the principal debtor. Again a guarantee which the creditor has obtained by misrepresentation or concealment of a material fact is invalid. A surety's ignorance of such a security does not affect his right to claim it.

It has been held that a contract of guarantee is not. A gratuitous bailment terminates when the bailor or bailee dies. By and large sections to lay down the duties of bailee as follows: Again the surety is discharged where the creditor releases the principal debtor or makes a composition with.

Bailment and pledge Sections to of the Act deal with contracts of bailment and pledge. In an indemnity. The bailee must in all cases of bailment take as much care of the goods bailed to him as a man of ordinary prudence would. A contract of indemnity has two parties.

His duty is naturally much less than that of a bailor for reward. Where a person already possesses the goods but contracts to hold them as a bailee. The person who delivers the goods is called the bailor and the person to whom the goods are so delivered is called the bailee. A guest is a bailee of the furniture he uses at a hotel.

A person who lends his goods without any charge is called gratuitous bailor. A bailment thus arises from contract.

The liability under a contract of i n d e m n i t y is contingent whereas the liability of the surety arises automatically since there is an existing debt of the principal debtor. While undertaking in a guarantee is collateral. A contract. But mere forbearance on the part of the creditor to sue the principal debtor or to enforce any other remedy against him does not discharge the surety.

Section defines bailment as the delivery of goods by one person to another for some purpose upon a contract that they shall.

The liability of railways as a bailee is regulated by the Indian Railways Act. A deposit of money in a bank is not in the nature of bailment. If the bailee's lawful charges are not paid. It should be noted that in case of several joint owners. If he makes default he will be responsible for any loss.

Besides this. If the bailor has no right to bail the goods and consequently the bailee sustains any loss. He must also return any increase of profit. A bailee should not do any act inconsistent with the conditions of bailment. Cbellapan Pillai v. Any unauthorised use of the goods would make the bailee absolutely liable for the damage to the goods.

Finder of goods A finder of goods has no right to sue the owner for compensation for trouble and expense he has voluntarily incurred to preserve the goods and to Where the bailee without the bailor's consent. The burden of proof is on bailee to show that he was exercising reasonable care and if he can prove this he will not be liable.

Where the bailee in good faith has returned the goods to the bailor who turns out to be not their owner. The bailee must return the goods or deliver them according to the bailor's directions. Where the bailee makes an inconsistent use of the goods bailed to him.

Bailor's duty It is the bailor's duty to disclose to the bailee all faults which may materially interfere with the use of the goods bailed.

The parties may stipulate the terms of their bargain. Law of Contract and Specific Relief. He may claim the reward for the return of the lost goods if it had been offered.. Under sections and he has. Where the pledge is by way of hypothecation.

He may retain the goods until he receives compensation for such trouble and expense. Where the pawnor defaults in payment of the debt or performance. The bailor in this is called the pawnor pledgor. He has to do so either with the consent of the borrower or through the court order.

A finder of goods is a bailee and therefore he is bound to exercise reasonable care. Avtar Singh. An adjourned sale needs no second notice. A valid pledge may be made by the owner. Eastern Book Co. A defaulting pawnor may redeem the goods pledged at any time before the actual sale of the pledged goods.

The pawnee is entitled to retain the goods only for the debt or promise. Pledge Section defines pledge as the bailment of goods as security for payment of a debt or performance of a promise. A sale without complying with the statutory requirement of reasonable notice is not effective. Thus a minor can bind his principal to others but cannot bind himself to them.

See Krishna v. Ganapathi AIR Mad Representative character and derivative authority are the distinguishing features of an agency. Section to lay down essentials of a valid ratification: Termination of authority Sections to deal with revocation of authority. In order to become liable to his principal. An agent represents another person who is called the principal. Ratification may be express or implied. The person ratifying the act must have material knowledge of the facts of the case.

Ratification Sometimes a person acts on behalf of another but without his authority. An agent differs from a servant and a bailee in certain respects. The act to be ratified must have been done without the ratifier's authority or knowledge and on his behalf.

An agency is terminated when the principal revokes his agent's authority or the agent renounces the business of the agency or the business is completed or the principal or the agent dies or becomes of unsound mind or the principal is Such latter person if he is competent to contract—major and of sound mind—may retrospectively confer authority on the act and own it.

The act to be ratified must not subject a third person to damages or terminate his any right or interest. U p o n valid ratification. N o consideration is needed to create an agency. The ratifier must be competent to contract. Agents are of several kinds and include factor. The ratification must be of the whole of the transaction. Ratification relates back to the date when the contract was originally made by the agent.

An agency may be created expressly or by implication of circumstances. It is known as ratification. As between principal and third persons.

An agent must conduct the business of the agency according to the principal's directions. Remuneration is due to an agent when the act has been completed. Duties of agent Sections to of the Act lay down the following duties of an agent: An agent must not make secret profit but must pay to the principal all sums received on his account. Revocation to be effective must be brought to the notice of the concerned party.

An agency automatically ends when the principal's power over the agent ends. An agent must act with reasonable diligence and reasonable skill unless the principal has notice of his want of skill. Where the agent has an interest in the continuance of the agency. The principal may repudiate the transaction or claim benefit which may have resulted to the agent from the transaction.

H e must make compensation to his principal for the consequences of his own neglect. An agency for an unscheduled period may be terminated at the principal's pleasure for future transactions.

These grounds. A cannot revoke this authority nor can it be terminated by his insanity or death. A gives authority to B to sell A's land and to pay himself out of the proceeds. An agent must not deal on his own account in the business of the agency. Section of the Act illustrates this. An agent must.

An agent cannot delegate his authority to another. Revocation operates prospectively. He has a lien on the principal's goods. Revocation and renunciation may be expressed or implied.

Where goods are destroyed by fire and the agent ignored to insure them. An agent must render proper accounts to his principal on demand. An agent cannot personally enforce contracts made on behalf of the principal nor is he bound by them.

Principal's liabilities to third parties Agency has the effect of making the principal liable to third parties for the agent's acts. But a principal is not liable to the agent for his criminal act. Section 4 of the Partnership Act defines partnership as a relation. Partnership Originally the law relating to partnership was embodied in the Indian Contract Act.

Where a principal gives money to an agent to download goods and he downloads the same on credit but misappropriates the money given to him for the purpose. The principal is bound to indemnify the agent against the consequences of all lawful acts done by the latter within the scope of authority given to him.

An agent w h o is guilty of misconduct is n o t e n t i t l e d to any remuneration pertaining to that part of the business which he has misconducted. The principal must compensate the agent for injury caused to him by the principal's neglect or want of skill.

Such a contract is presumed to exist when the agent contracts on behalf of a principal w h o resides abroad. The doctrine of respondent superior will be applicable in case the agent commits a tort while acting in the course of and within the scope of his agency.

Commercial Law.pdf

Principal's duties Sections to of the Act lay down the following duties of a principal to his agent: Where a government officer enters into an agreement on behalf of the government but the agreement does not comply with the constitutional requirements as to form.

The liability arises in all cases where the act was wrongful and was done by the agent within the scope of authority given to him. The officer is not an agent because the agreement is void.

It is immaterial that the agent committed the fraud. A partnership is different from a joint Hindu family business. The above Act states the following rights and duties: A company. Sharing in losses. A partnership would. This is illustrated by hypothetically suggesting that even if all the members of a company meet with a fatal mishap. Since a firm is not a legal person. The real relation between the parties as based on all the relevant facts taken together must be looked at to determine the existence of partnership.

The former springs from contract but in the latter a male becomes a member by mere birth. The test for determining partnership will be the real relation between the parties as shown from the relevant facts. An agreement which precludes one of the partners from sharing in profits does not make him a partner in the firm. Item four below. If two brothers divide the rent of their joint property. In banking the maximum number is ten. Sharing in profits of partnership is an important but not the sole factor to judge whether or not a person is a partner in a firm.

Thus the essentials of partnership are i a business.

The relation of partnership arises from contract and not from status. They may vary these from time to time with the consent of all the existing partners. The minimum and maximum members in a partnership. Individually each member is a partner and collectively the members are called a firm.

Mutual rights and duties Sections 9 to 17 of the Indian Partnership Act lay down the rights and duties of partners which. They must be just and faithful to each other. The mutual rights of duties of partners continue to be the same in the reconstituted firm or in case of its continuance after the fixed term. The firm must indemnify a partner in respect of payments made and liabilities incurred by him in an emergency as well as in the ordinary and proper running of the business.

It is at the discretion of other partners. A contract to the contrary here is unlawful and opposed to public policy. The transferee of a partner's share is entitled to receive the share of profits of the transferring partner. Partners must carry on the business of the firm for their greatest common advantage.

Compensation may be allowed to a working partner where there is any inequality between the respective labour put in by the partners. Every partner is bound to attend diligently his duties in the conduct of business. A partner is not entitled to receive remuneration for taking part in the conduct of the business.

A partner must indemnify the firm for any loss caused to it by his willful neglect in the conduct of the business of the firm 6. A partner is entitled to share profits equally and to contribute equally to the losses sustained by the firm. The best part? As a Chegg Study subscriber, you can view available interactive solutions manuals for each of your classes for one low monthly price.

Why download extra books when you can get all the homework help you need in one place? Can I get help with questions outside of textbook solution manuals? You bet! Just post a question you need help with, and one of our experts will provide a custom solution.

You can also find solutions immediately by searching the millions of fully answered study questions in our archive. It also enables a single trader or a small partnership to carry on a business.

Similarly, a corporation provides a structure for joint venture; holding family assets; continuing trusteeship; fund management; corporatised government enterprise; and, the co-enjoyment of property. Marshalling participants in large commercial enterprises and acting as a nominee to hold the legal title to assets are two other important functions. Professor Kahn-Freund went so far as to describe it as "calamitous".

Salomon's case established the independent corporate existence of a registered company, a principle of the greatest importance in company law. But if applied inflexibly, as was the case in Salomon, it can shield parties unreasonably, to the detriment of persons dealing with companies.

Corporate personality is essentially a metaphorical use of language clothing the formal group with a single legal identity by analogy with a natural person The Law Lords concluded that once registered in a manner required by the Act, a company forms a new legal entity separate from the shareholders, even where there is only a bare compliance with the provisions of the Act and where all, or nearly all, of the company's issued shares are held by one person.

Furthermore, the Court held that it was possible for traders not merely to limit their liability to the capital which they invested in the enterprise but even to elude any serious risk to the major part of that by subscribing for debentures rather than shares.

The House of Lords had sanctioned a change in ideas about what the company was and about the uses to which it could be put. It gave priority to the separate identity of the legal form and essentially ignored the economic reality of a one- person company. Basically, Goulding explains, the reason for criticism of Salomon's case is two-fold. First, the decision gives even apparently honest incorporators the benefit of limited liability in circumstances in which it is not necessary in order to encourage them to initiate or carry on their trade or business.

Second, the opportunities that the decision affords to unscrupulous promoters of private companies to abuse the advantages that the Corporations Act gives them by achieving a "wafer-thin" incorporation of an undercapitalised company. First, limited liability attracts small traders to the corporate form not because it represents an effective device with which to raise capital, but because it gives them access to an avenue via which to escape the "tyranny of unlimited liability".

Criticisms of limited liability are addressed at its impact on creditors and on society at large. The principle is that a limited company's creditors must look at the capital, the limited fund, and that only. Limited liability discourages shareholders from monitoring and controlling their company's commercial ventures. The company's creditors bear the burden of the risks inherent in dealing with limited liability companies.

At issue is whether it is right that limited liability should operate to restrict the size of the company's capital. Different types of creditors have different capacities to protect themselves against these risks. While banks and similar financial creditors easily overcome such risks, the same cannot be said of trade creditors, employees and tort creditors.

Because trade creditors rarely insist on security before they supply goods on credit, they bear a considerable part of the risk of corporate insolvency.Partners must carry on the business of the firm for their greatest common advantage. India and Japan will now lend assistance to each other in the collection of revenue claims.

Similarly, if subsequent to the making of the contract some event happens which the parties could not foresee and whose occurrence they could not control so that the agreement cannot be performed, the contract is said to be frustrated. If he fails to give such notice. For instance, threat to report criminal conduct to police cannot be classified as illegitimate pressure.

Write a review Rate this item: Further if there is no principal debt, there can be no valid guarantee. All rights reserved. Where a note or bill does not specify the time for payment and also in cases of cheque. Cited in Atlas Express Ltd.