...2. The Consent (continuare) As you know the juridical act, is the expression of smbdy's will meant to produce legal effects. From a juridical point of view, the juridical will of the parties is a complex issue. It is composed by two elements: - the consent; - the consideration. The consent means the externalized decision or intent to conclude a contract. In order to be valid, the consent must fulfill several conditions as follows; 1. To be expressed by person who is mentally capable to conclude the act. It means that the parties must have judgment or discernment, must be able to understand the nature of the act and its consequences. A pers that has a full concrete capacity is presumed by law to have judgment or discernment. This legal presumption may be overruled by proving the temporary lack of judgment of the person in question, as for example for temporarily mental illness, or influence of drugs. You can find this in the civil code Art. 1205 paragraph 1 2. To be expressed by a pers. who has the intention to produce legal effects. This condition is not fulfilled when for example the pers. Is only kidding, he has no real intention to conclude a contract – informal bet. 3. To be externalized. It means that the consent must result from the words or even the actions of the parties. In this respect several problems arise in case of silence. Generally in our law the consent cannot be implied and therefore in case of silence it is considered that there is no consent...
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...FREE CONSENT Meaning of consent: it means an act of assenting to an offer. According to section 13, "Tow or more persons are said to consent when they agree upon the same thing in the same thing in same sense." Thus, consent involves identity of minds in respect of the subject matter of the contract. In English Law, this is called 'consensus-ad-idem'. Effect of Absence of consent: When there is no consent at all, the agreement is void ab-initio, i.e. it is not enforceable at the option of either party. Example: X has one Maruti car and one fiat car. He wants to sell fiat car. Y does not know that X has two cars. Y offers to buy X's Maruti car Rs 50,000. X accepts the offer thinking it to be an offer for his Fiat car. Here, there is no identity of mind in respect of the subject of the subject matter. Hence there is no consent at all and the agreement is void ab-initio. Meaning of Free consent: It is one of the essential elements of a valid contract as it is evidenced by section 10 which provides that all agreements are contracts if they are made by the free consent of the parties... according to section 14, consent is said to be free when it is not caused by (a) Coercion, or (b)Undue influence, or (c) Fraud, or (d) Misrepresentation, or (e) Mistake. Effect of Absence of free consent: When there is consent but it is not free (i.e. when it is caused by coercion or undue influence or fraud or misrepresentation), the contract is usually voidable at the option of the party...
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...Kinds of defective contracts 1. Rescissible Contracts (Chap. 6) 2. Voidable Contracts (Chap. 7) 3. Unenforceable Contracts (Chap. 8) 4. Void or inexistent Contract (Chap. 9) Article 1380 Contracts validly agreed upon may be rescinded in the cases established by law. (1920) Rescissible Contracts – are those validly agreed upon because all the essential elements exist and, therefore, legally effective, but in the cases established by law, the remedy of rescission is granted in the interest of equity. Requisites of rescission. 1. The contract must be validly agreed upon. 2. There must be lesion or pecuniary prejudice to one of the parties or to a third person. 3. The rescission must be based upon a case especially provided by law. 4. There must be no other legal remedy to obtain reparation for the damage. 5. The party asking for rescission must be able to return what he is obliged to restore by reason of the contract. 6. The object of the contract must not legally be in the possession of the third person who did not act in bad faith; 7. The period for filing the action for rescission must not have prescribed. Article 1381 The following contracts are rescissible: 1. Those, which are entered into by guardians and suffered LESION by more than ¼ of value of the value that is the OBJECT. 2. Those agreed upon in representation of absentees, if the latter suffer the lesion stated in the preceding number; 3. Those undertaken...
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...DAMBARUDHAR V STATE OF ORISSA -SANMATI RAONKA, Symbiosis Law School, PUNE Contract is an agreement in which two parties wilfully enters into which binds them in a civil obligation. Therefore in order to enter into a contract the parties must agree to the same fact in the same manner. Their decision should not be waivered by any factors like fraud, coercion, misinterpretation or mistake. If any of the previously mentioned factors affect the decision of the parties entering into a contract then consent is said to be not given freely. Free Consent is very important to our case as there is a scope of misrepresentation that is one of the parties did not have or was mistaken to the material fact of the contract. Mulla and Pollock commenting on this section have observed that the expression “the same thing” appearing in this section means the whole content of the agreement, whether it consists, wholly or in part, of delivery of material objects, or payment, or executed acts or promises. According to section 10 of The Indian Contract Act, 1872, all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents.[1] According...
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...Essential elements of a Valid Contract by V S Rama Rao on October 3, 2008 Agreements and contracts are two different things. It is important to know first what constitutes a contract and what constitutes an agreement. We will then study which agreements are contracts, their distinction different types of agreements and contracts. Essentials Elements of a Valid Contract: Different sections of the Indian Contract Act lay down the essential elements of the contract. They are as under: 1. Proposal and acceptance 2. Consideration – lawful consideration with a lawful object 3. Capacity of parties to contract – competent parties 4. Free consent 5. An agreement must not be expressly declared to be void. 6. Writing and Registration if so required by law 7. Legal relationship 8. Certainty 9. Possibility of performance 10. Enforceable by law. Proposal and Acceptance: When one person signifies to another his willingness to do or abstain from doing anything with a view to obtaining the assent of that other to such act or abstinence he is said to make a proposal. The first step towards creating a contract is that one person shall signify or make a proposal or offer to the other, with a view to obtaining the acceptance of that another person to whom the offer is made. A proposal when accepted becomes a promise. When the person to whom the proposal is made signifies his assent thereof the proposal is said to be accepted. A proposal when accepted becomes a promise. Consideration:...
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...CONTRACTS Stages in the life of a contract: 1. Preparation/Generation 2. Perfection/Birth 3. Consummation/Death Characteristics of Contracts: (ROMA) 1. Relativity (Art. 1311) 2. Obligatoriness & Consensuality (Art. 1315) 3. Mutuality (Art. 1308) 4. Autonomy (Art. 1306) Stipulation pour Autrui - stipulation in favor of a 3rd party. Requisites: 1. The stipulation must be part, not whole of the contract; 2. the contracting parties must have clearly and deliberately conferred a favor upon a 3rd person; 3. the 3rd person must have communicate his acceptance; 4. neither of the contracting parties bears the legal representation of the 3rd party. General Rule: Contracts (except real contracts) are perfected from the moment there is a manifestation of concurrence between the offer and the acceptance regarding the object and the cause. Except: Acceptance by letter or telegram which does not bind the offerror except from the time it came to his knowledge. Theories applied to perfection of contracts: 1. Manifestation theory - the contract is perfected from the moment the acceptance is declared or made; 2. Expedition theory - the contract is perfected from the moment the offeree transmits the notification of acceptance to the offerror; 3. Reception theory - the contract is perfected from the moment that the notification of acceptance is in the hands of the offerror; 4. Cognition theory - the contract is perfected from the moment the acceptance comes to...
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...PART II - CONTRACTS -meeting of minds bet 2 parties whereby one binds himself with respect to other to give something or render some service PRINCIPAL CHARACTERISTICS: 1. Autonomy of wills – parties may stipulate anything as long as not illegal, immoral, etc. 2. Mutuality – performance or validity binds both parties; not left to will of one of parties 3. Obligatory Force – parties are bound from perfection of contract: a. fulfill what has been expressly stipulated b. all consequences w/c may be in keeping with good faith, usage & law 4. Relativity – binding only between the parties, their assigns, heirs; strangers cannot demand enforcement EXCEPTION TO RELATIVITY: a. Accion pauliana b. Accion directa c. Stipulation pour autrui REQUISITES OF STIPULATION POUR AUTRUI (1) Parties must have clearly and deliberately conferred a favor upon a 3rd person (2) The stipulation in favor of a 3rd person should be a part of, not the whole contract (3) That the favorable stipulation should not be conditioned or compensated by any kind of obligation whatsoever (4) Neither of the contracting parties bears the legal representation or authorization of 3rd party (5) The third person communicates his acceptance before revocation by the original parties d. Art 1312 e. Art 1314 REQUISITES OF ART 1312: (1) Existence of a valid contract (2) Knowledge of the contract by a 3rd person ...
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...Essay Title: “Factors that affect free consent in a contractual agreement under the Contract Act 1950”. 1. Coercion. Since a contract will only be binding if the parties voluntarily consent to it, it is obvious that where one party is forced to consent by threats or undue persuasion by the other, that consent should be invalid.One form of such threats is ‘coercion’ and has been defined in section 15 of the Contracts Act for the purposes of section 14 (as discussed in para 2.1) which, among others, require ‘free consent’ of contracting parties. The latter section goes on to provide that consent is free when it is not caused by ‘coercion’ as defined by section 15, or others such as ‘undue influence, fraud, misrepresentation and mistake’. The relevant part of section 15 reads as follows: “ ‘Coercion’ is the committing, or threatening to commit any act forbidden by the Penal Code, or the unlawful detaining or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.”Lord Moulton in Kanhaya Lal v. National Bank of India Ltd, an appeal to the Privy Council from India on a provision in pari materia with the local Act, opined that the definition of ‘coercion’ was solely a definition which applied ‘to the consideration whether there has been ‘free consent’ to an agreement so as to render it a contract’. This means that the definition of ‘coercion’ under section 15 applies solely to the consideration...
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...Essentials of a valid contract. A contract is an agreement that can be enforceable by law. An agreement is an offer and its acceptance. An agreement which can be enforceable by law must have some essential elements. According to the constitution,All agreements are contracts if they are made by the free consent of the parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. A contract must have the following elements. 1. Intention to create legal relationship. 2. Lawful object 3. Agreement not expressly declared void 4. Proper offer and it s acceptance 5. Free Consent 6. Capacity of parties to contract 7. Certainty of meaning. 8. Possibility of performance. 9. Lawful consideration 10. Legal formalities Intention to create legal relationship: The parties entering into a contract must have an intention to create a legal relationship. If there is no intention to create a legal relationship, that agreement cannot be treated as a valid contract. Generally there is no intention to create a legal relationship in social and domestic agreements. Invitation for lunch does not create a legal relationship. Certain agreements and obligation between father and daughter, mother and son and husband and wife does not create a legal relationship. An agreement wherein it is clearly mentioned that "This agreement is not intended to create formal or legal agreement and shall...
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...TITLE 2 CHAPTERS 1 Limitations on contractual stipulations * Law * Police power Classification of contracts according to its name or designation * Nominate contract * Innominate contract Kinds of innominate contract * I give that you may give * I give that you may do * I do that you may give * I do that you may do Rules governing innominate contracts * The agreement of the parties * Provisions of the Civil Code on obligations and contracts * Rules governing the most analogous contracts * Customs of the place Persons affected by the contract * General rule * Exceptions * By their nature * By stipulation * By provision of law Cases when strangers or third persons affected by a contract * Contracts containing a stipulation in favour of a third person * Contracts creating real rights * Contracts entered into to defraud creditors * Contracts which have been violated at the inducement of a third person Classes of stipulation pour autrui * Those where the stipulation is intended for the sole benefit of such person * Those where an obligation is due from the promise to the third person which the former seeks to discharge by means of such stipulation, as, for instance, where a transfer of property is coupled with the purchaser’s promise to pay a debt owing from the seller to a third person. Requisites of stipulation pour autrui * Contracting parties by their stipulation must have clearly...
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...CONTRACTS Stages in the life of a contract: 1. Preparation/Generation 2. Perfection/Birth 3. Consummation/Death Characteristics of Contracts: (ROMA) 1. Relativity (Art. 1311) 2. Obligatoriness & Consensuality (Art. 1315) 3. Mutuality (Art. 1308) 4. Autonomy (Art. 1306) Stipulation pour Autrui - stipulation in favor of a 3rd party. Requisites: 1. The stipulation must be part, not whole of the contract; 2. the contracting parties must have clearly and deliberately conferred a favor upon a 3rd person; 3. the 3rd person must have communicate his acceptance; 4. neither of the contracting parties bears the legal representation of the 3rd party. General Rule: Contracts (except real contracts) are perfected from the moment there is a manifestation of concurrence between the offer and the acceptance regarding the object and the cause. Except: Acceptance by letter or telegram which does not bind the offerror except from the time it came to his knowledge. Theories applied to perfection of contracts: 1. Manifestation theory - the contract is perfected from the moment the acceptance is declared or made; 2. Expedition theory - the contract is perfected from the moment the offeree transmits the notification of acceptance to the offerror; 3. Reception theory - the contract is perfected from the moment that the notification of acceptance is in the hands of the offerror; 4. Cognition theory - the contract is perfected from the moment the acceptance comes to...
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...All contracts are agreement but all agreement are not contracts Answer; A contract is a legally binding agreement or relationship that exists between two or more parties to do or abstain from performing certain acts. A contract can also be defined as a legally binding exchange of promises between two or more parties that the law will enforce. For a contract to be formed an offer made must backed acceptance of which there must be consideration. Both parties involved must intend to create legal relation on a lawful matter which must be entered into freely and should be possible to perform. An agreement is a form of cross reference between different parties, which may be written, oral and lies upon the honor of the parties for its fulfillment rather than being in any way enforceable. All contracts are agreement because there must be mutual understanding between two parties for a contract to be formed. All parties should agree and adhere to the terms and conditions of an offer. The following cases illustrate ways in which all contracts are agreements; In the case of invitation to treat, where an invitation to treat is merely an invitation to make an offer. When a firm's offer is accepted it results into a contract provided other elements of contracts are accepted. Considering person A buying a radio on hire purchase from person B who deals with electronics and its appliances. Both parties must come to an agreement on payment of monthly installment within specified period...
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...Aztec and substitution of MHM as general partner and, therefore, the removal and substitution are invalid as a matter of law. We conclude that the partnership agreement of Aztec 80-A, Ltd., as thereafter amended, permits the removal of Aztec and substitution of MHM as general partner as a matter of law. Accordingly, we affirm. The facts are undisputed. The controversy centers on section 11.12 of the partnership agreement. Section 11.12 states: Amendments. Amendments to this Agreement may be proposed by the General Partner, or by the holders of 10% or more of the Units, by submission of a written proposal to the General Partner. Following such proposal, the General Partner shall submit to the Limited Partners, by notice in accordance with Section 11.1 of this Agreement, a verbatim statement of the proposed amendment, and when the General Partner deems it appropriate, an opinion of counsel as to the legality of such proposed amendment, and its recommendation with respect to the proposed amendment. Except as otherwise expressly provided herein or as otherwise required by law, this Agreement may only be amended upon the written consent of the holders of seventy percent (70%) or more of the Units; provided, however, that (i) any amendment which shall reduce the Partnership interest or enlarge the obligations of any Limited Partner shall require the consent of that Limited Partner; (ii) no amendment shall be made to Sections 7.2...
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...UNIT – I ➢ Essential elements of a valid contract. ➢ Essentials of a valid offer. ➢ Essentials of valid consideration. ➢ Stranger to consideration. ➢ “No consideration- No contract” – explain and give exceptions. ➢ Discuss the provisions of law relating to contract by minor. ➢ Agreements Opposed To Public Policy. ➢ Free consent. ➢ Legality of object and consideration 1. ESSENTIAL ELEMENTS OF A VALID CONTRACT 1. “All contracts are agreements but an agreement are not contracts” – Discuss? (OR) Essential elements of valid contract? Ans. Indian contract Act (I A), 1872, sec 2 defines a contract us “an agreement enforceable by law.” From the above definitation, the features of contract can be classified as 1. Agreement 2. Legal obligation. 1. Agreement: According to Sec2 (e), “Every promise or every set of promises forming consideration for each other” is called an Agreement. Therefore, AGREEMENT = OFFER + ACCEPTANCE CONTRACT =AGREEMENT+ENFORCEABILITY AT LAW FEATURES OF AN AGREEMENT: 1. Plurality of the parties 2. Consensus – ad-idem 3. Legal obligation 1. Plurality of the parties; for every agreement, there should be minimum two parties because one person alone cannot enter into an agreement with himself. 2. Consensus – ad-idem; the minds of both the parties must be in ad-idem, i.e., both...
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...ELEMENTS OF A CONTRACT AND ENFORCEABILITY UNDER COMMON LAW AND UNIVERSAL COMMERCIAL CODE (UCC) Student Name: Michael Shepard Course Name and Number: Business 670: Legal Environment of Business Instructor: Dr. Leah Westerman Submission Date: April 20, 2015 Abstract This article will define the five elements needed to form an enforceable contract under common law and the Uniform Commercial Code (UCC). It will describe which types of contracts come under common law and under UCC. It examines one hypothetical, non-competitive agreement between a Chef and an employer (namely, Fabulous Hotel) in terms of enforceability and whether common law or UCC need to be applied to the specific case. The contract in question requires Chef to not become employed at any other dining establishment in the same metropolitan area for a period of two years after separation of employment with Fabulous Hotel. The article shows under four possible conditions in which the contract may become unenforceable. It concludes with reinforcement of contractual elemental requirements and suggests more appropriate contract formation provisions in serving best interest of both parties under common law and UCC. Five Elements of a Contract The five elements needed to form a viable contract are: offer by one party to another or many, acceptance by the offered party, consideration (usually in the form of remunerative compensation for accepted offer) in exchange for accepted offer, legal capacity...
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