Voidability Of Agreements In Indian Contracts Act

Coercion

As per S.15 of the Act, Coercion means doing or threatening to do an act forbidden by IPC or detaining property unlawfully with the intension of compelling the other party enter into an agreement. Coercion may proceed from anybody and be directed to anybody. E.g., if someone forces the other to entera contract by threatening to kill their family, it is coercion.

Ranganyakamma v. Alwar Setti, a Hindu widow was forced to adopt X under the threat that her husband’s corpse would not be allowed to remove unless she adopted X. The adoption was held to be coerced and hence voidable.

Undue Influence

As per S.16 of the Act, a contract occurs by undue influence when one party has a dominating relationship with the other party which may affect the will of the inferior party. Eg. Father-Son relationship.

Situations in which the person is in a position to dominate the will of another:

1. Where he holds real or apparent authority over the other,2. Where he stands in a fiduciary relation to the other,3. When he makes a contract with a person whose mental capacity is less (minors, person of unsound mind etc).

According to S.19A, contracts that occur by way of Undue Influence may be set aside on the option of the party whose consent was obtained by undue influence.

Fraud

Acts committed with the intension to deceive the other party into committing to a contact are considered as fraud under S. 17

Essentials of Fraud:

1. The act must have been committed by a party to the contract or by his agent,2. The act must be a suggestion by one as to a fact which is not true or which he believes is not true or an active concealment of a fact or a promise made without any intension of performing it or any other act with the intension to deceive,3. The act must not only be caused by an intension to deceive but also actually cause deception,4. The deceit must be aimed at the contracting party or his agent,5. As per S.17, mere silence does not amount to fraud. However, there are two conditions under which silence may amount to fraud and they are as follows:• The circumstances are such that the person keep silence has a duty to speak the truth,• Silence in itself is equivalent to speech.

According to S.19 of the Act, Contacts that occur because of Fraud are voidable at the request of the party on who the fraud was committed. However, if the party had enough means to discover the truth with ordinary diligence and did not do so, the contract under fraud/misrepresentation will not be voidable

Misrepresentation

This is defined under S.18 of the Act and in simple words means to communicate wrong information to a contracting party without intention to deceive them. In this case, the party communicating the wrong information itself believes that the wrong information is actually true. Another way of misrepresentation is when one contracting party, innocently but wrongly so gets an advantage over the other contracting party or leads the other party to a mistake in subject matter of the agreement.

Eg., A learns from X that B would be a director of a company which is about to be formed which is not actually true. A to get M to buy shares in the company tells him that B is going to be the director of the company. M influence by this buys the shares. This is misrepresentation since A did not intend to lie and in fact believed in the truth of a statement which was not actually true and acted upon it.

According to S.19 of the Act, Contacts that occur as a result of Misrepresentation are voidable at the request of the party on who the Misrepresentationwas committed.

Voidability of Agreements caused without Free Consent (S. 19 and 19A):• 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. A party to a contract whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.• But if the fraud/misrepresentation was not the case of them consent then the contract is not voidable. Also, if the affected party has the means to discovery the truth by ordinary diligence in case of fraud or misrepresentation and they did not do so, then the contract is not voidable.

Mistake

According to S. 20: 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.

Under S.22, A contract is not void merely because it was caused by one of the parties to it being under a mistake as to a matter of fact. 


In the case of Haji Abdul Rahman Alarakha v. The Bombay and Persia Steam Navigation Co., it was upheld that the mistake was not mutual and only on the part of the plaintiff therefore the contract was not void and could be enforced.

Mistake of Law is covered by S.21 of the act which states that: A contract is not voidable because it was caused by a mistake as to any law in force in India; but a mistake as to a law not in force in India has the same effect as a mistake of fact.

Valid Contracts

Under S.10, agreements are contracts, if they are made by:

Free Consent

• of parties competent to contract 
• for lawful consideration and a lawful object and 
• are not expressly declared to be void. 


Competency:

S. 11 Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.

A. Agreement by a minor

An agreement made by a minor is void and cannot be enforced in a court of law. If obligations are imposed on a minor, the agreement will be considered void and such obligations cannot be enforced against the minor.

Example: (The case Mohori Bibi v Dharmodas Ghose) Aminor borrowed a sum of money after mortgaging his property. The mortgages approached the court for getting his money back. The Privy Council (highest court prior to the Supreme Court) held that the sum couldn’t be claimed because an agreement with a minor is not valid.

No estoppel against a minor:

Estoppel essentially means, when a person by communicating in written or oral form, or even by such a conduct that leads the other person to believe it to be true, and then the person acts after having believed in it. Then he is prevented from denying the truth of that thing. A minor cannot be estopped from pleading minority and can therefore escape liability on ground of minority.

Example: (Leslie v Sheill) The boy borrowed sum of money claiming falsely to be an adult. He later tried to defend himself by stating that he is a minor hence he is not liable to pay any money. In this case the court held that the rule of estoppel does not apply against minors and held that the boy was not liable.

B. The Position of a Person of Unsound Mind

Only a person of sound mind is competent to contract. The position of a person of unsound mind is similar to that of a minor, a contract entered by him is void ab initio, it is treated as though it was void from the beginning, implying thereby that it never came into being. He is not capable of transferring any property by any kind of deed, of sale or gift or any other kind and a transfer by him would be void ab initio, i.e void from the very inception.

Contracts by Lunatics: In India, contracts by persons of unsound mind are void altogether. It is not necessary to prove that the person dealing with the person of unsound mind knew that the person was unsound. So the party pleading unsoundness has the burden of proof to prove unsoundness at the time of entering into the contract. There is a presumption of sanity and if the contract is made during the ‘sane period’ then it is valid.

Contracts by Drunkards: Contract by a person in a state of drunkenness is absolutely void and incapable of ratification. The legal position of a contract by a drunken person would depend upon whether or not the other contracting party fraudulently took advantage of his mental state. 


Contracts by Insolvents: There is nothing in the contract act to prohibit a contract by an insolvent after commencement of insolvency proceedings, but before adjudication. 


Consent:

One of the prerequisites for a valid contract is that both parties should have given their consent and the consent should be free.

According to the provisions of the Contract Act, unless two or more persons agree to the same thing in the same sense, there is deemed to he no consent on their part. In other words, there may be absence of meeting of minds of the parties, or there may be no consensus ad idem. In such cases, there arises no contract, which can be enforced.

Example: Let us consider the example of Raffles v Wichelhaus, the buyer and the seller entered into an agreement under which the seller was to supply a cargo of cotton to arrive, ‘ex Peerless from Bombay. There were two ships of the same name, Peerless, and both were to sail from Bombay, one in October and the other in December. The buyer had in mind the Peerless sailing in October, whereas the seller thought of the ship sailing in December. The seller dispatched cotton by ship but the buyer refused to accept the same. In this case, the offer and acceptance did not coincide and there was no contract and, therefore it was held that the buyer was entitled to refuse to take delivery.

One of the essentials of a valid contract is that parties should enter into a contract with free consent. The two elements of free consent are:

1. presence of consent which essentially means parties agreeing and saying yes to an agreement.2. the consent should have been freely given.

Consent is said to be free when it is not caused by-

(1) Coercion, as defined in section 15, or

(2) Undue influence, as defined in section 16, or

(3) Fraud, as defined in section 17, or

(4) Misrepresentation, as defined in section 18, or

(5) Mistake, subject to the provisions of sections 20, 21 and 22.

If consent is given under of the four circumstances, the contract is voidable. But in case of mistake, the agreement is void. Thus, it is essential for the formation of a valid contract that the consent is free on the part of both parties.

Power under Section 482

In the case of Sandeep Khaitan, Resolution Professional v. JSVM Plywood Industries the Supreme Court held that the innate power of High Court under Section 482 of the Code of Criminal Procedure (Cr.P.C.) ought not be utilized to subvert statutory direct under Sections 14 and 17 of the Insolvency and Bankruptcy Code (IBC).

Section 482 of Cr.P.C. is based on latin maxim ‘Ex debito justiciae’ which means ‘in the interest of justice’ and it mainly talks about inherent power of the High Court.

Section 14 of the Insolvency and Bankruptcy Code (IBC) talks about Moratorium which is is really portrayed as a period wherein no legal procedures for recuperation, authorization of security interest, deal or move of resources, or termination of essential contracts can be instituted or continued against the Corporate Debtor.

Section 17 of the Insolvency and Bankruptcy Code is titled as ‘Management of Affairs of Corporate Debtor by Interim Resolution Professional’. This section proclaims that the powers of the Board of Directors or accomplices are to be practiced by the IRP (Interim Resolution Professional) and financial institutions are to follow the guidelines of the IRP.

An appeal filed by an IRP (appellant) was heard at the Supreme Court against a judgement passed by the Gauhati High Court. The respondent (JSVM Plywood) had claimed to be an operation creditor and laid down a claim regarding the due amount from the Corporate Debtor. Here the former Managing Director of the Corporate Debtor conspired with the respondent of Rs. 32.50 lakh without authority from the appellant. An FIR was registered and a cyber complaint was filed by the appellant under the Section 19 and Section 23(2) of IBC. In consequence the ICICI bank froze those accounts deeming it fit in lieu of the FIR. Later, the respondent addressed his disagreement by challenging the FIR of the appellant under Section 482 of CrPc. On 4th April 2021, the High Court allowed this application and which led to the current day hearing.

The bench headed by the Justices UU Lalit and KM Joseph in the judgement of the Supreme Court held that the High Court shall not pass orders which are interim in nature as it may fail to observe the worthwhile restrictions on its potentiality under the section 482 of the Code of Criminal Procedure. The Court held that the impact of the moratorium under the IBC, incorporates the forbidding of transferring, hindrance, estrangement or even discarding of its assets by the Corporate Debtor. Further, it ruled that from the acceptance date of application and appointment of IRP, the management of every affair of the Corporate Debtor will be bestowed upon them. The Court was also of the view that with the appointment of the IRP, the powers of Corporate Debtors, Board of Directors and even the partners will cease. The Court further emphasized that Section 17 and its declaration states that the capacity and ability of the Board of Directors or the partners shall be put into exertion by the IRP. The IRP will also be responsible to make the financial institutions act on their directions embedded.

The Court continued to change the order passed by the High Court and permitted the respondent to work its record subject to it initially dispatching into the record of the Corporate Debtor, the measure of Rs 32.50 lakh which stood paid to it by the administration of the Corporate Debtor.

Promise, Consideration, Agreement in Indian Contracts Act

Promise (S.2 (b), 2(c)):

When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise.

The person making the proposal is called the “promisor”, and the person accepting the proposal is called the “promisee .

Express & Implied Promise (S.9): In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied. 


Alternative Promise: When the promisee is given an alternative or choice of one of two things, the promise is said to be alternative. According to S.58, In the case of an alternative promise, one branch of which is legal and the other illegal, the legal branch alone can be enforced.

Reciprocal Promise (S. 2(f)): Promises which form the consideration or part of the consideration for each other are called reciprocal promises. 


Consideration (S. 2(d)): The Indian Contract Act,defines consideration as. When at a desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing something. suchact or abstinence or promise is called a consideration or promise.” The definition therefore requires the following essentials to be satisfied in order that there is valid consideration:

1. Consideration to be given at the desire of the promisor”. 2. Consideration to be given by the promisee or any other person. 3. The consideration may be past, present or future, so far as the definition says that the promisee:• Has done or abstained from doing or, • Does or abstains from doing, or • Promises to do or to abstain from doing, something.4. There should be some act, abstinence or promise by the promisee, which constitutes consideration for the promise.

Ex nudo pacto non oritur action: Out of a naked pact no cause of action arises. So the law will not enforce a promise given for nothing.

Essential elements of a valid consideration:

1. ‘At the desire of the promisor” The consideration must move at the desire of the promisor. An act done voluntarily by the promisee or at the desire of a third party will not constitute a valid contract.

Example: A voluntarily rescues B’s daughter from a river. A cannot claim remuneration from B as it was not done at B’s request.

2. The consideration can be furnished by any person, even one who is not party to the contract. Consideration may be given by the promisee or any other person. In India, the position is that consideration for the promise may move from a third person, who is not a party to the contract.

Example: Sreemoyee promises to give her mobile phone to Rahul and a consideration of Rs 5000 for the same is given to Sreemoyee by Nikita and not by Rahul. Such a contract will be valid in India.

3. The consideration must be something of value. It must be real and competent and should not be physically impossible, legally impossible, uncertain or illusory.

Example: Asaram tell Baparam that if Baparam gives him Rs. 10,000/- then Asaram shall communicate with Baparam’s deceased ancestors and ensure the Baparam goes into heaven on dying. Baparam agrees. This agreement cannot be called a contract. Because while Baparam’sconsideration of Rs. 10,000/- is real and has value in the eyes of the law, Asaram’s consideration of communicating with deceased persons, etc. cannot be said to be real and having value in the eyes of the law.

4. Also, the consideration should not be illegal. Example: The contract for killing an Individual is void, since involves murder, an illegal act.

5. Consideration need not be adequate. A contract which is supported by consideration is valid irrespective of the fact that the consideration is inadequate.

Example: A agrees to sell a mobile worth Rs. 8000 for Rs. 500. A’s consent to the agreement was freely given. The agreement is a contract, notwithstanding the inadequacy of consideration.

There are some exceptions:

1. Case of natural love and affection. If an agreement is made without consideration, it can be valid if

a. Parties are very closely related

b. Due to love and affection

c. Registered

d. In writing

Example: (Venkataswamy Vs Rangaswamy)

In love and affection the elder brother, promised to clear the debts of his younger brother. The agreement was in writing and it was registered. It was held by the court that the elder one was liable to the creditors.

Example: (Bhiwa Vs Shivaram)

A sued B. his brother for a share in certain lands but the suit was dismissed as B solemnly affirmed that the property was not ancestral B then agreed by registered writing to give A one half of the same property. The present suit was brought to obtain that share.

In the above case the plaintiff admitted that he and his brother had long been on bad terms but in spite of the strained relationship the court held, “that this is just the case to which the defendant had such natural love and affection for his brother that in order to be reconciled to him, he was willing to give him his property.”

2. Past voluntary service

A promise to compensate wholly or in part a person who has already voluntarily done some thing for the promisor is enforceable. In other words a promise to pay for a past voluntary service is binding.

Example: A finds B’s purse and gives it to her and B promises to pay A Rs. 100. In so doing, there is a valid contract in such cases, although A’s act was voluntary.

3. Payment of a time-barred debt

A promise to pay a time barred debt is enforceable. The promise should be in writing. It should be signed by the promisor 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.

4. Gift actually made

For validity of a gift, which is not an agreement, does not require a consideration. The provision as to consideration does not affect, as between donor and the donce, the validity of any gift, which has actually been made.

Privity of Contract:

The doctrine of privity of contracts creates a bond which is personal to the contracting parties. Other parties are neither bound by the contract, nor are they entitled under it. This doctrine prevents a third party from enforcing the contract.

Thus, a contract between A and B can not be imposed by C and nor can C be held liable under this contract. The same was held in Shiv Dayal v. Union of India. 


Contracts are enforceable by a beneficiary though not a party to the contract. In India, a person not a party to an agreement can sue under the agreement if such a person is a beneficiary and the contract is for his benefit. 


Agreement and Contract:

Agreement (S. 2(e))Every promise and every set of promises, forming the consideration for each other, is an agreement.


Unenforceable Agreements: An otherwise valid contract may be unenforceable at law if some rule renders it incapable of proof due to some technical defects.

Void Agreements (S. 2(g): An agreement not enforceable by law is said to be void. Thus, agreements where the object or consideration is unlawful, or there is no consideration at all are void. Only agreements can be void not contracts. No legal rights flow from void agreements and they are void ab initio.

Illegal Agreements: These are agreements that are void because they are against the law. Thus, an agreement to buy smuggled opium would be void as it is illegal. Illegal is a narrower term than void.

Contracts (S.2(h)): An agreement enforceable by law is a contract. A Contract is an agreement which is legally enforceable. All Contracts are Agreements but not all agreements are contracts. A contract is an agreement with the objective to create an obligation. 


Valid Contract: Such agreements are in accordance with the intention of the parties and law. They satisfy the conditions of valid contract under S.10 of the act. 


Voidable Contract (S. 2(i)): An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract. It is a contract that may be dissolved at the will of one party of the contract. Generally, agreements made under coercion, undue influence etc are voidable.

Indian Contract Act, 1872.

Date of application: 1st September 1872

Purpose/Objective: Define and amend certain parts of law relating to contracts 


According to Irrawasy Flotilla Co. v. Bhagwandas, this act is not exhaustive and not a complete code. It does not affect any usage or custom of trade nor does it affect any incident of contract not expressly repealed by this act.

Contract is nothing but a deal or an agreement between two parties to do some work and receive something in return and at the same time to follow certain terms and conditions of the agreement. Contracts are a common feature of our lives, ranging from purchasing a car from a garage or entering into large-scale transactions such as building a shopping mall. The law of contract ensures that people entering into agreements abide by it as such agreements are governed and enforceable by law, Indian Contract law is governed by the Indian Contract Act, 1872 which adopted and incorporated common law principles derived from English law.

In short it can be defined as follows: A contract is simply an agreement between two or more persons that is made enforceable by law.

Now, what is an agreement?

Everyone enters into agreements, constantly often without realizing it. All agreements, freely entered into, create a moral obligation to fulfill one’s role as stipulated per the agreement. A usual agreement includes Offer and Acceptance.

Example: If Bunny and Sunny agree to practice dancing together, it would be morally wrong on Bunny’s part to start practicing with Lunny and not practice with Sunnyat all. However, not all agreements can be enforced by law when there has been a violation. Contracts are those agreements, in which either of the parties has an option of resorting to a court, for fulfillment of obligations within the agreement.

1. Offer:

The first step to enter into an agreement is the making of an offer. An offer to do or not to do something must be made for the purpose of being agreed to. If one person informs another to do a particular task, it sometimes may be a mere statement and hence that will not qualify as an offer. Hence a statement is not a offer unless made with the view of obtaining the assent of the other party to whom it is addressed. 


Communication of Offer:

A contract can arise once the offer is accepted. Once the offer has come to the knowledge the offeree then only an offer can be accepted. It means that the offer has to be communicated to the offeree in order that the offeree can accept it. Communication of an offer is said to be complete when it comes to the knowledge of the person to whom it is made. However At times, the person to whom the proposal is made indicates his willingness to buy at a lesser price than what is offered. This is what we call as a Counter-Offer.

Many statements that appear to be offers are mere invitation to offer. Quotation of trader’s usual prices, quotation of lowest price, catalogue of books or goods and advertisement of auctions are all invitations to offer. Therefore, it is to be concluded that some statements that seem to be offers might just be Invitation to Offer.

2. Acceptance:

When the person to whom the offer is made signifies his assent thereto, the offer is said to be accepted. A proposal, when accepted, becomes a promise. To convert a proposal into a promise, the acceptance must be:

1. Absolute and unqualified 
2. Be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted.

The important test here is to look at whether the acceptance is a “mirror image” of the offer made. That is, the terms of the offer and acceptance should be the same.Proposal may be accepted in the following three ways: 


1.  By communicating acceptance 


2.  By acceptance of any consideration for a reciprocal promise 


3.  Performance of the condition of a proposal. 


3. Revocation:

A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards. The communication of proposals the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting, or revoking by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it. Example: A proposes, by a letter sent by post, to sell his house to B. B accepts the proposal by a letter sent by post. A may revoke his proposal at any time before or at the moment when B posts his letter of acceptance, but not afterwards. B may revoke his acceptance at any time before or at the moment when the letter communicating it reaches A, but not afterwards.

Intention Create Legal Relationship:

For an offer and acceptance to result in a valid contract, it is compulsory to have an offer, which is made with the intention to create a legal relationship. Not all agreements can amount to a contract enforceable in law. For example your friend agrees to go for a movie or a picnic or to a disco then, can you sue him in case he ditches you? No, you cannot because such social agreement cannot be enforced in a court of law.

Example: In Balfour V. Balfour, The Plaintiff and the Defendant were a married couple. The Defendant husband and the Plaintiff wife lived in Ceylon where the Defendant worked.  In 1915, while the Defendant was on leave, the couple returned to England.  When it was time to return to Ceylon, the Plaintiff was advised not to return because of her health.  Prior to the Defendant returning, he promised to send the Plaintiff £30 per month as support. The parties’ relationship deteriorated and the parties began living apart. The Plaintiff broughtsuit to enforce the Defendant’s promise to pay her £30 per month. However, the court did not uphold the plaintiff’s claim since it was merely a domestic obligation, which was not resulting in a contract.

However, it will not be true to state that no domestic matters can be contracts. In McGregor v. McGregor, a husband and wife withdrew a complaint against each other under the agreement by which the husband promised to pay allowance to the wife and in turn the wife agreed to refrain from pledging credit. The court held this agreement as a valid contract.

Vicarious Liability and Remoteness of Damage

Generally, a person is only liable for his own wrongful acts and one does not incur any liability for the acts done by others however in some special cases like that of a vicarious liability, it is the liability of one person for the act done by another person. For such a liability to arise there has to be a certain type of relationship between the two parties involved. Common examples of vicarious liability arising are:

• Liability of the principal for the tort of his agent 
• Liability of partners for torts of each other 
• Liability of master for the tort of his servant

1. An agent is someone who acts on your behalf, i.e. an agent is someone who is authorized to do an act by another person and consequently, acts on his behalf. The authority to do the act may be express or implied. The principal may not expressly ask his agent to do the wrongful act but when the agent acts in the ordinary course of the performance of his duties as an agent, the principal becomes liable for the same.

Example: In Lloyd v Grace Smith & Co, Mrs. Lloyd owned two cottages and was not satisfied with the income from these cottages. She approached her bank to seek advice on her property. The managing clerk of the company advised her to sell the cottages and invest the money in a better way. She was asked to sign two documents, which were supposed to be sale deeds. However the clerk actually made her sign gift deeds, after which he sold the property and kept the sale amount with him. It was held that since the agent was acting in the course of his apparent authority, the principal i.e. the bank was held liable for the fraud. However, if the agent were acting in his personal capacity, example as a relative of the lady, the bank would not be held liable. This is because in such a situation, the agent would not be approached as an agent of the bank, but as a relative who can advice. An agent is different from an independent contractor because the agent does an act on behalf of and/or for the principal, while the independent contractor is not authorized, but hired to do an act. Independent contractor fulfills his obligations independently and in his own capacity.

2. The relationship between partners, in a partnership firm is similar to that existing between a principal and agent. They are all considered as acting jointly for the purpose of business. For the tort committed by any partner in the ordinary course of the business of the firm, all other partners are liable to the same extent as the guilty partner. For this purpose, any one of the partners, some of them in any possible combination or even all of them together can be sued. That is, the partners are liable jointly or severely.

Example: In Hamlyn v Houston & Co, one of the partners of a firm bribed the plaintiff’s clerk and induced him to commit a wrongful act, i.e. leaking secrets of the plaintiff’s business. It was held that both the partners were liable for the wrongful act.

3. Master and Servant: In case a servant in the course of employment does a wrongful act, then both the master and the servant can be held liable for the act. The wrongful act of the servant is deemed to be the act of the master as well.

The doctrine of the liability of the master for the act of his servant is based on two Latin terms namely:

i. Respondent superior: This means let the principal be liable, and it puts the master in the position as though he had done the act himself. The logic behind this maxim is that the principal is in a better position to meet the claim as he is placed in a better position financially.

ii. Qui facit per alium facit per se: This means he who does an act through another is deemed in law to do it himself.

Who is a Servant?

A servant can be defined as a person employed by some one to do a work under the directions and control of the employer. This employer is called the master. As a general rule, a master is liable for the tort of his servant but is not liable for the tort of an independent contractor.

Few Exceptions:

Liability of employer for acts of independent contractor: as a general rule the master is liable for the torts committed by his servant, but an employer is not liable for the torts committed by an independent contractor employed by him. However, if employer authorizes the doing of an illegal act or subsequently satisfies the same, he can be made liable for such an act. 


Outside the course of employment: when a servant does any act, which is not in the course of master’s business, the same is deemed to be outside the course of employment. An act may be in the course of employment even though that is not strictly in the performance of the duties of the workman. The actsdone outside the ordinary course of a master’s business are acts outside the course of employment and the idea of vicarious liability will not apply.

Remoteness of Damage: There may be a number of consequences of a wrongful act. The wrongdoer is liable only for those consequences that are not too remote from his conduct. He cannot be made liable for all the consequences that follow as an indirect result of the wrongful act.

There are two approaches while determining whether damage is remote or not:

• The test of reasonable foresight: If the consequence of the wrongful act could have been easily foreseeable by a prudent man then such an act of the wrongdoer would constitute the tort.

• Test of directness: According to this test, the wrongdoer is liable for all direct consequences of his wrongful act. The consequences, which directly follow, cannot be remote.

Example: In Haynes v Harwood [1935] 1 KB 146, case the Defendant left a horse-drawn van unattended in a crowded street. The horses bolted when a boy threw a stone at them. A police officer tried to stop the horses to save a woman and children who were in the path of the bolting horses. The police officer was injured. It was held that the defendant was liable because they should have anticipated such a mishap. 


Example: In Scott v Shepherd [1773] 96 Eng. Rep. 525, the defendant threw a squib, which is a small, lit firework, into a busy marketplace with lots of people and stalls. In order to protect themselves and avoid damage, the squib was thrown by two other people. When it landed near to the complainant, it exploded and caused injury to his face. He later lost the use of one of his eyes. It was held that the injury to the complainant was the direct and unlawful act of the defendant who originally threw and intended to throw the squib. The other people were not ‘free agents’ in this situation and threw on the squib for their own safety and this was justifiable. The throwing on was classed as a continuation of the defendant’s action, which was intended. Whatever followed this was part of the defendant’s original act.

Defamation as a tort

Definition & Meaning:

Defamation is the publication of a statement, without any justification, that harms the reputation of an individual person, business, product, group, government, religion, or nation. A defamatory statement is something, which harms the reputation of the person who is the plaintiff by affecting his reputation adversely. It is the publication of a statement, which lowers the reputation of a person in front of other members of the society. An allegation, which exposes one to disgrace or contempt is defamatory.

A defamatory statement could be made in different ways. It may be oral, in writing, printed or by the exhibition of a picture, statue or effigy or by some product. It need not be an express statement; it can be implied from the conduct of a person as well.

Essential Elements:

1.) The statement should be defamatory: The very essence of defamation itself is injury to a person’s character or reputation. The statement should injure the reputation of a person as a direct result of it. The defamatory statement could be made in different ways such as orally or in writing or printed or by conduct. However, the standard to be applied is that of a right mind its citizen a man of fair average intelligence and not that of a special class of person whose values are not shared or approved by the fair-minded members of society.

2.) The statement must refer to the plaintiff: 
In action for defamation the plaintiff has to prove that the statement of which he complains actually referred to him. The defamatory statement to constitute defamation must be directed against the plaintiff and must be injurious to the plaintiff’s reputation. 


3.) The statement must be published: Publication means making the defamatory matter known to some person other than the person defamed and unless that is done no civil action for defamation lies. Example: If, during the course of an argument, A calls B’s integrity into question, which a third party C is witnessing, B could initiate proceedings against A, provided there is no truth in A’s statements. However, in case there was no third party present when the allegation was made, there can be no defamation, as the defamatory statement was not published. The publication need not be only in written form. TV, radio or Internet broadcasts, speeches, newspaper articles, magazine stories all are included within the ambit of defamation-propagating media. In order to determine if a statement is defamatory, it has to be assessed according to the thought process of like-minded members of the society.4.) Innuendo: At times a statement may not be defamatory on first appearance, but because of some latent or secondary meaning, it may be considered as defamatory. When the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action for defamation, he must prove the latent or secondary meaning i.s. the innuendo, which makes the statement defamatory Intention to defame is not necessary, however. If someone has done injury to the reputation of a person the intention of the defendant is not to be taken into consideration while making judgment for the damages.

Defenses: The defenses available to an action against defamation are:

1. Justification or Truth: If the alleged defamatory statement is a “truth” then according to law of Tort it is a complete defense. However it is important to remember that only complete truth is an absolute defense to defamation and one must have the means to prove that they have printed the truth for example: A newspaper publishes that Madan was a corrupt politician who has amassed 100 Crorerupees by siphoning money meant to be given to the farmers. Madan, who is indeed corrupt, sues the newspaper. The newspaper can prove that Madan is corrupt and that he has amassed his wealth due to such corruption, however, they fail to prove that the money came from the aid meant for farmer. The suit for defamation will partially succeed.

2. Fair Comment: There can be no liability if the statement made is a fair comment on matters of public interest which is a defense to an action for defamation. It must be a comment, i.e. an expression of opinion rather than an assertion of fact. A comment is an expression of opinion on certain facts. It is different from making a statement of fact. A fair comment is a defense in itself whereas if it is a statement of fact, it can be excused only if there is justification or proof. Example: P says of a movie made by Q: the movie is terrible’ or the movie is so far removed from reality that I wondered if I was in out of space. These comments made on a movie will be protected if made in good faith only as an expression of personal opinion.

3. Privilege: In some special cases the law permits to make such statement, which might become defamatory in normal circumstances. These special cases are called as privilege. Example: Many have seen this in parliament where a Member of Parliament makes many false allegations. Here in this special case they have the parliamentary privilege that nothing spoken on the floor of any house, while such house is in session, can be used as evidence in a court of law.

Nuisance as a Tort

Nuisance:

In tort law, Nuisance means unlawful interference with a person’s use or enjoyment of land or some other right in connection with it. There are two types of nuisance: Public & Private.

Types of Nuisance:

Nuisances may be divided into two main headings namely, (i) private nuisances and (ii) public nuisances. This division is not exhaustive, and to some extent overlap with each other; for the same act may often cause a public nuisance and also cause special damage to individuals

  1. Public Nuisance: It is the interference with the rights of public at large in general and it is a punishable offence as per section 268 of the Indian Penal Code. A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance to persons who may have occasion to use any public right.
  2. Private Nuisance: Private nuisance is the using or authorizing the use of one’s property, or of anything under one’s control, so as to injuriously affect an owner or occupier of property by physically injuring his property or affecting its enjoyment by interfering materially with his health, comfort or convenience.

Essential Requirements: To constitute a tort of nuisance the following essentials are required to be proved:

Wrongful Act by the Defendant: for the action against nuisance to arise the first essentiality is the conduct of a wrongful act by the defendant. This includes interference. The interference must be unreasonable or unlawful. It is meant that the act should not be justifiable in the eyes of the law and should be by an act, which no reasonable man would do. Such interference has to be with the use or enjoyment of land, or of some rights over the property, or it should be in connection with the property or physical discomfort. There should be visible damage to the property or with the enjoyment of the property.

However, If the plaintiff is extra sensitive and finds the action of the defendant to be unreasonable due to his sensitivity, which otherwise is reasonable as per a prudent man, the action for nuisance cannot arise.

Damage/Loss/Inconvenience caused to the plaintiff. The next essentiality requires a substantive damage or inconvenience to be caused to the plaintiff. It shall not consider trifles or minimal damage claimed by the plaintiff due to his own sensitivity. Nevertheless, if the act of the defendant involves the hampering of a legal right of the plaintiff, nuisance comes into play.

Case Law: In Ushaben V. Bhagyalaxmi Chitra Mandir, where the Plaintiff sued the Defendant against the screening of the movie “Jai Santoshi Maa” claiming that it hurts the Religious sentiments of a particular Hindu community, the court dismissed the Plea stating that hurt to religious feeling was not an actionable wrong and the Plaintiff is free to not watch the Movie again. Hence it was held that in order to claim damages for Nuisance, the interference should be in a state of continuing wrong.

Defences:

Effectual Defences:

  • Prescriptive right to commit nuisance: The right to do something which would otherwise constitute private nuisance may be acquired an easement by prescription. A right to continue a nuisance can be acquired by prescription if it has been peaceably enjoyed as a right, without interruption for 20 years.
  • Statutory authority: an act done under the authority of a statute is a complete defence.

Ineffectual Defences:

  • Nuisance due to the act of others: sometimes the act of two or more persons acting independently of each other may cause nuisance altogether and the act of any one of them alone would not cause nuisance.
  • Public good: it is no defence to say that what is nuisance to a particular plaintiff is beneficial to the public in general otherwise no public utility undertaking could be held liable for unlawful interference with the right of individuals.
  • Reasonable care: use of reasonable care to prevent nuisance is generally no defence.
  • Plaintiff coming to nuisance: A person cannot be expected to refrain from buying a land on which a nuisance already exists, and the plaintiff cannot recover even if the nuisance has been going on long before he went to that place. So, it is no defence that the plaintiff himself came to the place of nuisance.

False Imprisonment and Trespass to Land as a Tort

False Imprisonment as a Tort

False Imprisonment implies a total restraint on the liberty of another person without any lawful justification. The time of restraint does not matter in this case. The essentials of this tort are:

1. Total restraint on the liberty2. No Lawful justification for restraint.

Total Restraint:

Total Restraint means stopping a person from moving beyond a certain area and this constitutes as false imprisonment. Stopping one from going in a particular direction is not total restraint but in fact only partial restraint and hence does not amount to false imprisonment.

Unlawful detention:

It is mandatory that the detention/restraint must be unlawful. In Rudul Sah v. State of Bihar, the petitioner was acquitted by the court but released from jail 14 years thereafter. The state tried to justify the detention by pleading the detention was for medical treatment of the petitioner for his mental imbalance. The plea was rejected, and compensation was granted to the petitioner.

There are two instances where total restraint will not amount to False Imprisonment:

1. Means of Escape: If there is a viable means of escape to a person who is restrained, the act will not amount to false imprisonment. However, the means of escape must be such that it can be used by the restrained person. For example, a window too high with risk of falling will not count as means of escape.2. Lawful Detention: If the detention/restraint is done by the mandate of law it is lawful and therefore not false imprisonment. In the case of Robinson v. Balmain New Ferry Co Ltd, the plaintiff entered the defendants wharf with the idea to cross the river by one of the defendant’s ferry boats. But since the wait period was too long, he wished to exit but denied paying the exit changes which were lawfully displayed as rules on the notice board. The defendant would not allow exit until payment of charges. When a suit for false imprisonment was brought, it was rejected since the detention was considered lawful.

Remedies for False Imprisonment:

1. Action for damages: whenever the plaintiff has been wrongfully detained, he/she can always bring an action to claim damages.2. Self-help: While still under detention, a person can choose to use reasonable force to escape.3. Habeas corpus: it is a speedy remedy for procuring the release of a person wrongfully detained. This may be issued either by the supreme court under article 32 are by the high court under article 226 of the constitution.

Trespass to Land

Trespass to land means direct interference with the possession of land, without lawful justification. If the interference is indirect, then the act is nuisance. Direct interference means either physically entering the property or even using tangible objects to do so. Planting a tree on others’ land is trespass but if the person plants a tree over his land and the roots of the branches escape on the land of the neighbour then that will be nuisance. Trespass is a wrong against possession not ownership so even someone who is not true owner and just in possession can sue for trespass. It is actionable even without proving damages.

Trespass ab initio: It is when a person enters a property with some authority but then misuses that authority to do a wrongful act. In the case of Elias v. Pasmore, the defendants, certain police officers entered the plaintiff premises to make lawful arrest, but they removed certain documents without having any lawful authority for that which was therefore an act of misfeasance causing trespass ab initio.

Remedies for Trespass:

1. Re-entry: If a person’s possession has been disturbed by a trespasser, he has the right to use reasonable force to get a trespass vacated.2. Action for ejectment: S.6 of the specific relief act gives a speedy remedy to a person who has been dispossessed of immovable property.3. Action for mesne profit: a person who was wrongfully disposed of his land may also claim compensation for the loss which he has suffered during the period of dispossession.

Understanding the concepts of Battery and Assault.

A.) Battery: The wrong of battery consists in the intentional application of force to another person without any lawful justification. The essential requirements are, a.) Use of force, b.) The use of such force must be without any lawful justification.

Touching someone in aggression may also be constituted as battery. Causing someone physical discomfort without directly touching, such as inflection of heat, light, electricity or gas etc. can still fall under the category of ‘use of force’ and constitute battery. The use of force in either case, should be intentional and without lawful justification for it to be considered as battery.

Exceptions:

However, Mere passive obstruction cannot be considered as a use of force. Example: In Innes V. White, a policeman although unlawfully prevented the plaintiff from entering into a club, he did not make use of any force but was merely passive like a door or wall to prevent the plaintiff from entering the premises and hence it did not constitute battery. Also, harm suffered voluntarily cannot be considered as battery.

B.) Assault: It is an act of the defendant that causes to the plaintiff reasonable apprehension of the infliction of battery on him by the defendant. Apprehension is defined as a worry or fear that something unpleasant may happen. In simple words when a person (defendant) creates an apprehension in the mind of another person (plaintiff) by his act, that he is going to commit battery against the person, an assault is said to be committed. The essential requirements are that there should be a reasonable apprehension created that immediate force will be used.

Pointing a loaded gun at someone may be considered as an act of assault.

Generally, assault precedes battery. The act of showing clenched fists to someone is an act of assault and actually striking it will amount to battery. It is also not necessary that every battery should include assault in the first place.

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