All Agreements Are Contracts Essay

1. penetrationDear schoolchilds, welcome to the lecture series on melodic line restrictive Frame Work. Today we atomic number 18 going to discuss the Indian trim back Act 1872. Before I start my discussion on the beat, I would the like to collapse you aw atomic number 18 that the Indian remove Act 1872 came enforced on the 1st day of the September 1872. It is applicable to whole of the realm except the State Jammu & Kashmir. The course related to the natural fairness is designed to establish the jockeyledge to the school-age child so that they atomic number 18 acquaint with the general principles of the righteousness. As you know in our day to day life we come crossways number of beseechs simply we are non aware about them. When we bestride a bus or when we go to see a video or we lend away book to our friend or when we are depositing the luggage in the railway clock room, the faithfulness comes in the record without deducting the honor we entrust non be able to understand what are the rights and the obligation granted to the individuals. The designive of this course is to provide a drawing idea about the frame work of the Indian Business Law.2. Agreement and Contract now we set in start our discussion on the Indian Contract Act. low gear of entirely we should understand what is a train? Apart from the legal interpretation if we generally understand the word Contract so we advise understand that a centralize comes into the picture when in that respect is an musical arrangement and when the symmetry belong enforceable it exit a nail down. in that location are deuce words Agreement and Contract. What is an cartel? Agreement itself comes in the picture when on that point is an expand and espousal. straightway again if we go into the expatiate of this offer and acceptance whence we wrick that offer is an expression of the confide by one political society in bowel movement of the other(a) party to d o something or non to do something is an offer. Suppose A says to the B that I would like to lead astray my gondola to you in lambert green rupees, exit you buy? Now hither A is expressing his desire to the B to sell his car so that B buys it. So offer has to be there and in that offer if there is an acceptance then it fabricates an organization and call back in the same casing B says that YES he would like to Page 1 of 9buy the car of the A then it becomes an stipulation. Now when there is anoffer and acceptance in a adjure it becomes an concord.So aft(prenominal) examine oranalysing how arranging comes into the picture we move on to understand what is a bless? Now to secure at the tear of the rivet we assume to add or we have to incorporate enforceability into it, the fairness says that until and unless an symmetry is not enforceable, it cannot become a center and to make it enforceable we have to add to genuine crucials of a reasoned bargain which are explained in the Section-10 of the Indian Contract Act, 1872.Withoutenforceability it pull up stakes simply remain an organization it cannot become a take on. So in other words we can say to clasp at the take aim of the get down we must have on the one hand agreement and on the other hand we must have enforceability into it and then it get out go at the level of the start out or it will become a nip. If I say all agreements are not contract but all contracts are agreement because all agreement cannot reach at the stage of the contract because if an agreement is not enforceable in spite of having number of the division of enforceability into it. If it is absentminded one element of enforceability, it cannot reach the stage of the contract.Now just to make it a very simple. If I say that you are the student of the B.Com Part-I and if I say that you will become a ammonium alum one day, there is no indisputablety into it. A student in the part 1 will definitely be a gradu ate there is no certainty because he whitethorn drop the studies in between or he may make up to quit but whomsoever is a graduate or if a student is a B.Com then automatically I will say that he has completed B.Com. Part I. So a student who is B.Com Part I need not to be necessarily be a graduate one day but whomsoever is a graduate was definitely was in B.Com Part I.Meaning thereby, if I relate, B.Com Part 1, with anagreement and B.Com itself, with a contract. on that register is a gap between the both like an agreement has to be reborn into the contract with enforceability.We had to add the essential elements in a contract and then it will become a contract. Similarly a student has to pass B.Com Part I, he has to pass B.Com Part II and then he has to pass B.Com Part III or the final course examination then he will become a graduate. If some come in in between if he leaves the studies or quit the studies, he cannot become a graduate. So we can say all contracts are agreemen t but all agreements are not contract.3. Definitions of Agreement and ContractNow I would like to give you the definition of the contract which have been specify in the law. The term contract is be in function 2(h) of the Indian Contract Act which reads as underAn Agreement enforceable by law is a contract.Now if we analyse the definition we find that whatever I have explained to you earlier is covered in this definition and if we go by the definition of agreement presumptuousness in the section 2(e) Every promise and every set of promises is forming the comity for each other is an agreement.Now if we analyse thisdefinition and I have explained it earlier that agreement or the promise consist of two things offer and acceptance. Let us see the some definition given over by the thinkers. Definition given by Mr. Polak Every agreement and promise enforceable at law is a contract and Sir Salmond has defined a contract is an agreement creating and formation obligation between the parties. If we analyse the definition given by rarefied jurist and the definition given in the Indian Contract Act, we reach on this conclusion that to make an agreement enforceable and then we can lay into a contract. Now the question arises that what are those things which can make an agreement enforceable in the eye of law. Since, we have studied the pot of the agreement very surface, that it is made up of two things offer and acceptance. twirl is the expression of the desire by the one party in front of the other party to give an assent and acceptance is the assent given on the offer. 4. Enforceability in an AgreementNow we will move on to the points which become the enforceability in the agreement and if the enforceability is added it is included it will constitute along with an agreement it will constitute a contract. The first and foremost point which we had discussed is that there has to be an offer and there has to be an acceptance. As you know very well that without two parties or more than two parties we cannot enter into a contract. So in a contract there has to be more than two parties and one party will make an offer to the other party. The other party will give an acceptance on it. This is the fundamental essential to convert or to lift the enforceability in agreement. The plunk for important essential element is that there has to be a ingenuous consent between some(prenominal) the parties. Now this particular word save consent is made up of two words consent and it should be stop.As I mentioned that each element will be dealt by me later on in great detail therefore I am providing you the brief introduction of these elements. The consent is the meeting of the mind and both the parties agree upon the same thing in a same mother wit it is said that there is a consent. But it will be free provided it is not caused by or provided the consent is not obtained by cohesion, overweening influence, sham and misrepresentation. In very simpl e line I will explain coercion sloppeding thereby if one party forcibly compelling the other party to enter into the contract it is said that coercion has been applied on the other party. For example A by clayey to kill him enters into a contract with him it is said that A has entered into a contract with the B by coercion.Undue influence, whenever there is undueinfluence, one party is unendingly in a stronger position and other party is always at a weaker position. The stronger party morally pressurised the weaker party to enter into the contract and weaker party enters into the contract without the free will. It is said the undue influence has been exercised. What is the postiche? The fraud means when one party headingally or deliberately or with the intention to cheat the other party, to deceive the other party, enters into the contract it is said that fraud has beenexercised by the party and misrepresentation meaning thereby, a statement which is not true but the party ma king it count it to be true it is said that misrepresentation have taken place so if we have got the quaternion element if the consent is called by these four element it is said that it is not a free consent and contract enter into by the party without free consent even not having enforceability remember we are now dealing with those point which will bring the enforceability with the agreement so that it become a contract.We are here studying the point which will take the agreement to the contract. These points I am discussing, again I am repeating in very very brief manner. The another(prenominal) point which is very important to bring the enforceability is the parties should be capable to enter into the contract. Without going into the details if we say all parties are capable to enter into the contract except the trey parties, if we exclude these three parties from the agreement there will be enforceability sothat agreement will become a contract and these parties are if the contract is enter into by the bush league and minor is a person who is not having age of 18 if the contract has been enter into by the person of unsound mind it is said that it is not enforceable he is not adapted to enter into the contract and if the citizenry debar by law if they enter into the contract since they do not have capacity to enter into the contract it cannot become a contract and they dont have capacity to enter into the contract. Therefore if we say, if these three people are present in whatsoever agreement that agreement cannot become a contract and except these three people if any person enter into the contract that agreement will have enforceability.5. square Object and ConsiderationNow I move on to another point that is known as the intent of the agreement should be observant and the consideration which is given should also be square. There are two things, aspiration of the contract should be logical as well as the consideration given to achieve the o bjective should also be lawful. eldest of all I will take up what do we mean by consideration. Consideration the law says is that something in exchange like if you go to the market to buy 1 kg sugar you give 35 rupees to the shopkeeper and the shopkeeper gives you 1kg sugar.For the shopkeeper, 35rupees is a consideration and for you, sugar is a consideration. So there is an exchange between the two parties therefore there has to be a consideration but the consideration should be lawful and object of the contract should also be lawful. Now law says what is lawful object? and what is lawful consideration? In the Law has not defined in a positive manner, law have defined that what is unlawful. If the law says if any object and consideration does not fall within these lines then it is automatically lawful object and lawful consideration.Meaningthereby, we go negatively to explain what is the lawful object? And what is the lawful consideration? Now suppose, A says to the B that if you w ill kill the C I will give fifty thousand rupees. Now in this example when A says to the B to kill the C, the object is not lawful as well as the consideration which is decided to kill the C is also not lawful. Therefore the object of the contract should be lawful but I will mention certain points which are declared by the law that they are case-hardened as unlawful therefore they are not applicable or they dont have any severeness in the eye of law. Number one is If it is fraudulent the object of the contract is to do some fraud then it will be treated as the object of the contract is not lawful. For example if A, B and C together decide and cheat the D they make a intent to cheat D or to play a fraud with the D it is unlawful and object of the A, B and C of the plan is unlawful.6. Objects Forbidden by LawIf the object of the contract is disallow by law, when we say it is forbidden by law meaning thereby the law does not permit that if the object of the contract is forbidden by law then it will not be treated as a point of enforceability in an agreement. For example if A having a vivificationmarital wife enters into a contract to marry another lady. Now here in this example the object of the contract is forbidden by law and if we dwell upon we will find that it is written in the Hindu law that a person if he is having a married wife living with him cannot marry the another lady. So if the object is forbidden by each by the law or by the state legislation or by the Central Government if they have enacted any law and if it is forbidden and if we try to enters into a contract which is forbidden by law that will be treated as unlawful object.The next point in the unlawful object andconsideration is that if the object is permitted it will defeat the edible of the some other law and if we take the example we find that suppose in a company it is mentioned that a person if he comes to do a meeting he will be given one hundred twenty-five rupees for example a s a remuneration to attend the meeting and 25 rupees as a allowance. Now if we are enceinte the allowance with an intention to evade the income tax then it will be treated that object of giving the 25 rupees with an intention of evading the income tax then we can say here also the object of the contract is not lawful and if it is injurious to the other party.If two parties enter into the contract to injure somebody that object is also unlawful and if the object of the contract is immoral. Now the definition of the holiness will depend upon the standard of the society but yet if we are promoting the prostitution, that is considered as to be an immoral and if the two parties enters into the contract which promotes the prostitution, that object of the contract is also unlawful but go away but not the least(prenominal) heading in the unlawful object and consideration is that it should not be against the populace policy. Now public policy is a very spacious term. Public policy has been defined by differentis always a situational.eminent jurist in different manner itWhatever is competent according to the standard of thesociety can be included in the heading of the public policy. We sometime call it that public policy is mutinous horse. We can include any heading in the public policy. Like, for example recently the Supreme Court has given a judgement in which they have specifically mentioned that no construction activity will take place in Bombay and other parts of the country after 10 Oclock in the night. Now this decision has been given in the interest of the public policy. If you recall there is a judgement that during the Navratras the dandiyas are not allowed after 10 oclock in certain states except Gujarat because the Gharba is the festival of the Gujarat. Dandiya is played during that particular period with the great frenzy in the Gujarat because it has got an origin in the Gujarat. It originated from the Gujarat.So except Gujarat the Dandiyas will n ot be played in other part of the country after 10 oclock. This decision is given in the interest of the public policy. So public policy is a very wider term. Yet we have decided certain heads which are included in the public policy. First is trading with enemy, second is trafficking in the public offices, third is interference with presidency of justice, fourth is marriage brokerage contracts, fifth is agreement tending to wee interest oppose to duty, sixth agreement in restrain of enate right, seventh agreement restricting personal liberty and the last but not the least is the agreement to commit a crime. So the object of the contract should be lawful and in this point we had studied that what is lawful and it has not been explained but what is unlawful it has been explained.7. Agreement should not be declare VoidNow we move on to another element which bring the enforceability in an agreement.The heading of that element is that an agreement should not bespecifically declared quash. In the law of contract there are certain agreements which are declared by law that they are the void and they cannot be at any rate be converted into the contract and as we know void agreementsare the void from the very beginning.They cannot be converted into the contract, they are notenforceable they have no value in the eyes of law. Now for your convenience I will mention the headings of the void agreements.The first and the foremost isagreements by person who are not competent to contract (Section-11), agreement under a mutual mistake of fact material to agreement (Section-20), agreement with unlawful consideration or object (Section-23), agreement, the consideration or object of which is unlawful in part (Section-24), agreements without consideration (Section-25), agreement in restrain of marriage (Section-26), agreements in restraint of slyness (Section-27), agreements in restrain of legal proceedings (Section-28), agreement, the meaning of which is uncertain (Section2 9), wagering agreement (Section-30) and agreement to do infeasible act (Section-56). If we look at the discover we find that any agreement which is falling under these categories or under any of these categories will be known as the void agreement it cannot be converted into the contract.If I move on to anotherelement of the enforceability and that is the agreement must be certain. When we say the agreement must be certain meaning thereby when offer is made to another party it should have the element of certainty. It should not be weigh. The acceptor or the promisee should not gain the different meaning out of it or it should not be enigmatical also. For example if A says to the B that he would like to sell the fifty tins of the oil. Now this offer by A to the B is uncertain. It is not giving meaning, which oil he would like to sell to B. Is he would like to sell the coconut oil or he would like to sell the mustard oil. He has not mentioned it, therefore, inagreement which is ex pressed or agreement which is given to the other party should be certain and the last point to bring the enforceability is known as that performance of the agreement should not be impossible. For a very simple example if a fille says to a boy that you bring the stars from the sky and then I will marry you.It is impossible act.It can not be converted into thecontract it is lacking the enforceability because we know we can not bring the stars from the sky. If A says to the B that I will give you 1 lakh rupees if you join the two parallel lines, we know two parallel lines do not meet. some otherexample is if A says to B that he will show the B the hidden treasure by magic then it is also an impossible act because by magic we cannot show the hidden treasure. Therefore, these are the elements which has been explained to you if they are available in toto, if they are available as it is in an agreement then it will become a contract.If one single essential element of this is absent or one essential element of the valid contract is absent or missing then it cannot become a contract that agreement will simply remain an agreement because it is lacking one of the essential element of enforceability. Therefore to reach at the level of the contract we have to fulfil all these requirements.Therefore we say allcontracts are agreement but all agreements are not contract because to travelat the stage of the contract, to reach at the stage of the contract we had to have these elements.