Daily Reports 18.11.2015

Smt. Suma, teacher of Law of Contracts (CP-02), came to the class in the first hour and taught the following.

1.       First of all, she distinguished between the organs of state namely Legislative, Executive, and Judiciary.

2.       Then she described what judge made laws are.

3.       Social change leads to demand of law. Legislation often creates laws to make social change.

4.       Preliminary role of the court is to judge the dispute.

5.       If a right has been established, even if there is no statute, the court may entertain a case and issue a judgment.

6.       Judgments are precedents until the Legislature enacts laws in that matter.

7.       The court that issued the judgment or its higher court may overrule such judgment laws.

8.       Until express provision is prescribed, the existing legal position shall continue.

9.       CASE LAW : Carlill v Carbolic Smoke BallCompany [1892]

The Carbolic Smoke Ball Co. made a product called the "smoke ball". It claimed to be a cure for influenza and a number of other diseases, in the context of the 1889–1890 flu pandemic (estimated to have killed 1 million people). The smoke ball was a rubber ball with a tube attached. It was filled with carbolic acid (or phenol). The tube would be inserted into a user's nose and squeezed at the bottom to release the vapours. The nose would run, ostensibly flushing out viral infections.

The Company published advertisements in the Pall Mall Gazette and other newspapers on November 13, 1891, claiming that it would pay £100 to anyone who got sick with influenza after using its product according to the instructions provided with it.

£100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks, according to the printed directions supplied with each ball. 

£1000 is deposited with the Alliance Bank, Regent Street, showing our sincerity in the matter. 

During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventives against this disease, and in no ascertained case was the disease contracted by those using the carbolic smoke ball.

One carbolic smoke ball will last a family several months, making it the cheapest remedy in the world at the price, 10s. post free. The ball can be refilled at a cost of 5s. Address: “Carbolic Smoke Ball Company”, 27, Princes Street, Hanover Square, London.

Mrs Louisa Elizabeth Carlill saw the advertisement, bought one of the balls and used it three times daily for nearly two months until she contracted the flu on 17 January 1892. She claimed £100 from the Carbolic Smoke Ball Company. They ignored two letters from her husband, a solicitor. On a third request for her reward, they replied with an anonymous letter that if it is used properly the company had complete confidence in the smoke ball's efficacy, but "to protect themselves against all fraudulent claims" they would need her to come to their office to use the ball each day and be checked by the secretary. Mrs Carlill brought a claim to court. The barristers representing her argued that the advertisement and her reliance on it was a contract between her and the company, and so they ought to pay. The company argued it was not a serious contract.

Defence of the company was that it was only an advertisement, and was not an offer, and even if it may be considered as an offer, it was addressed to the public. The plaintiff had not communicated her consent to the company. Hence there was no agreement or contract between the plaintiff and the company.

The court found among others that

1.       The nature of the notice was not that of an advertisement. It was a general offer to the public.

2.       In a general offer, there is no need of specific acceptance; the conduct of the person shall be treated as acceptance.

3.       Thus there is a promise. and on paying consideration such promise becomes agreement and contract.

4.       Both the plaintiff and the defendant in this case had a common intention.

The first hour ended there and Smt. Praseeda, teacher of Civil Procedure Code  (CP-05) came in the second hour and taught the following among others.

1.       The rules of filing a plaint are given in Civil Rules of Practice.

2.       Filing shall be made before 3 O’ Clock on every working day in a Munsiff Court.

3.       It is the duty of the plaintiff to check whether the plaint has been found defective by the registry.

4.       Seven days time from the marking of defects shall be given to rectify the defects of the plaint.

5.       Plaint original shall be filed in two copies.

6.       If two copies are not submitted, or court fee is undervalued, or some other prescribed defects are noticed the plaint shall be marked defective.

7.       The limitation of seven days for rectification shall be counted from the date of noting of the defects by the competent officer.

8.       QUESTION. What is the difference between rejection of plaint and return of plaint?

Rejection of a plaint is done when defects are noticed in the plaint. Return of a plaint is done when the Court in which the plaint is filed has no jurisdiction to hear and try the case.

9.       Interlocutory Applications (IA)

An Interlocutory Application contains an Affidavit and a Petition.

The Cause Title of the Interlocutory order is as follows.

BEFORE THE HONOURABLE COURT OF ………………………….

O.S. …………./15

I.A. ….………./15

ABCD                                                     Plaintiff / Petitioner

XYZ                                         Defendant / Respondent

AFFIDAVIT

I, Name, s/o, ……….., address, and working as ………… aged ………. do hereby solemnly affirm and state as follows.

1.       I am the plaintiff in the above suit and the petitioner in this Interlocutory Application. I have filed a suit for permanent injunction for restraining the defendant from encroaching into my property.

10.    In the body of the Affidavit minimum facts are narrated.

In the circumstances, I have come to file this plaint.

So this honourable Court may be pleased to grant me a temporary injunction order restraining the respondents from entering into the plaint schedule properties.

Then an SFI campaign lead by Sri. M.G. Girilal, former SFI District President and a member of Chelakkara local body came into the class and asked the students to protest against the statement of the Education Minister of Kerala to the effect that it is not proper to allow the boy and girl students to sit in the same benches. SFI leader requested the students of the class to sit intermingled irrespective of their sex.

Then Sri. Dijons entered the class and informed that an Interclass football tournament is convened from the next day onwards.

The second hour ended there and Smt. Premalatha, teacher of Law of Torts (CP-03) came to the class in the third hour and taught the following points. 

1.       General Defence - Mistake

The defence Mistake has no general application, and has application only in limited cases.

Mistake is not considered as a Tort and not considered as a defence too. But at certain circumstances it is both a Tort and a defence.

2.       If A and B comes to the class with red bags and A takes the bag of B thinking it as her own, and if B complains, then A may defend that it was due to a mistake. But the Law terms it as theft.

3.       Similarly if A enters into the property of B thinking that it is his own, and resort to the defence of Mistake, then the Law does not recognize such mistakes.

Then a KSU campaign lead by Sri. Sreejan entered the class to protest against the statement of the Education Minister. KSU also protests in the attempt of converting Kerala Varma Kollege into a temple and St. Thomas College as a Church.

Smt. Premalatha continued the class.

4.       Malicious Prosecution.

If A brought a legal action against B and a Court of law subsequently finds after prosecution that B is innocent, then there is a remedy in the form of compensation for B against A for malicious prosecution. Here A may resort to the defence of Mistake. The Court may admit such defences.

5.       Mistake is a defence available in malicious prosecution. The general principle is that ignorance of law is not an excuse. Therefore the defence of Mistake cannot be used in general law.

6.       Private Defence

Law says that a person can use reasonable force in order to protect one’s life and property.

7.       The use of reasonable force in order to save his life, property and honesty is justified.

8.       Private defence is justified only when a reasonable force is used to protect one’s person and property. When excessive force is applied than circumstances demand, then private defence cannot be justified.

9.       Necessity

Necessity is a defence. Necessity is an act done by the defendant to avoid a greater harm.

When A cyclist suddenly comes in front of the Bus taking a curve in a high range area, the driver may not be able to attempt to save the cyclist fearing that if the driver applies the brakes the Bus may skid on the road and fall into the abyss causing death and injury to many travelers. The defence of necessity is applicable here.

10.   Necessity is justified only in certain situations. In an inevitable accident an innocent person sustains injury.

11.   In the case of necessity the act is an intented one, but only to avoid a greater harm.

12.   CASE LAW : Cope v. Sharpe 1912

The defendant in this case entered the plaintiff’s property without his permission to extinguish fire. Here the Court held that the defendant was not liable for trespass and justified the defendant’s act.

13.   CASE LAW : Thomas v. Carter

In this case the defendant entered the plaintiff’s property without permission. In an action for compensation defendant argued that defence of necessity is available in favour of him because he has entered into the land when a fire has taken place in the land. But the Court has held that while the defendant was entering into the property there was already a fireman. Therefore the act will not amount to necessity.

The third hour ended there and there was no class in the fourth hour. Therefore the students made it an occasion to have a discussion on the issue of the statement of the Education Minister. The discussion started at 12.10 p.m. and ended at 1.15 p.m. Around 15 students expressed their opinions. At the end of the session, when asked for a feedback, students remarked that such discussions may be conducted at least once in a week.

SFI convened a protest in front of the College at around 1.15 with almost 50 students against the statement of the minister.

It is also informed from the Library that books may be available to the 3/1 students on production of Identity Cards.

The reports for the day end here.