Smt. Premalatha, teacher of Law of
Torts (CP-03) came
to the class in the first hour. She taught the following points.
1.
Law
of torts has no separate legislation. Case Laws are the sources of Law of
Torts.
2.
Tort
is a Civil Wrong, but all Civil Wrongs are not Torts.
3.
In
torts rights and liabilities are not the results of contracts; they are defined
in the General Law.
4.
In
Tort the compensation is not fixed, it is the discretionary power of the Courts
that fixes the compensation.
5.
The
legal term amicus curie means a friend of court.
6.
The
maxim “ubi jus ibi remedium” means that every right has a remedy.
7.
Right
to work, Right to enter the classroom, etc are rights. Somebody if
unauthorisedly prevents you from entering the class room, it is a harm or
wrong.
8.
In
the Law of Torts your remedy is compensation alone.
9.
Consumer
Protection Laws come under the purview of Torts.
10.
The
Law says, “If you have a right, you may enjoy that. Your right is recognized.”
11.
Then
she gave a SHORT QUESTION (SQ) “Briefly explain the difference between ‘Tort
and Contract’ and ‘Tort and Crime.’” Answer (Ans) Contract is a civil wrong,
but not a Tort. In Contract the remedy is Liquidated Damages or Specific
Performance, whereas in Tort the remedy is Unliquidated Damages. Eg. A agrees
to sell his house to B for a consideration of Rupees twenty five lakhs. B pays
an advance of Rupees one lakh in advance and pays the balance amount in time,
but A fails to transfer the ownership to B. Then B may file a Suit for Specific
Performance.
In Family
Laws, under Section 125 of Criminal Procedure Code the payment of maintenance
is not a Tort, it is not compensation too.
If A commits
theft upon B’s properties and B complaints before a competent authority, that
authority files a criminal case against A. This is a criminal action which may
result into prosecution and punishment. But Tort is a Civil Wrong.
12.
SHORT
QUESTION (SQ) “Explain Pigeon Hole Theory.’” Answer (Ans) Salmond says that a
person gets compensation only if the violation of right come under any
recognised category of wrongs. Salmond says that there are certain wrongs
called pigeon holes. A remedy is available only to these recognised categories
of wrongs. If the wrongs do not fit to these pigeon holes there is no remedy at
all available to the aggrieved party.
But Winfield
rejects this theory and upholds the Maxim ‘ubi jes ibi remedium’ which provides
remedy for every infringement of Right or Tort.
Some examples
of these Pigeon Holes are
1.
Tresspass
2.
Assault
3.
Defamation
4.
Negligence
5.
Nuisance
As the first hour ended and second
hour started Smt. Praseeda, teacher of Civil Procedure Code (CP-05) entered and taught the following.
1.
There are different types of civil suits that
may be filed.
2.
Suits for fixation of boundaries can be filed.
3.
If a person trespasses into the properties of a
person, he may approach the court with a suit for injunction.
4.
Injunction is restricting or preventing a person
from doing something wrong under law.
5.
Mandatory Injunction is for getting a direction
to do a specific thing done.
6.
In the case of a breach of contract, a suit for
compensation or a suit for specific performance may be filed.
7.
In the case of a suit for specific performance,
Court may satisfy itself that money compensation is inadequate.
8.
Breach of legitimate expectation is a reason for
filing a suit for specific performance.
9.
There is a hierarchy of civil courts. SupremeCourt, being the Apex Court comes at the top and the following order of
diminishing importance generally gives the hierarchy. Supreme Court, HighCourt, District Court, Sub Court, Munsiff Court.
10.
In addition to the above, different Tribunals,
Forums etc may be fit into their appropriate places.
11.
Summons is a mandatory direction to appear at a
particular place on a particular date and time.
12.
Petty cases are cases with less money value are
cases of less importance.
13.
In the case of non-appearance in a criminal
procedure an arrest warrant can be issued. But in civil cases no arrest warrant
can be issued except in some exceptional cases.
As
the hour was soon to conclude, Sri Ajmal, an SFI leader came into the
class with permission and started a speech. He said that November 2nd
is the martyrdom day of Com. A.B. Bijesh who was brutally attacked on a D Zone
day by NDF supporters. He emphasized on the words of the father of Roshan, a
Koothuparambu martyr. The father said that his son had shown his chest before
bullets that caused his death.
Smt. Suma, teacher of Law of
Contracts (CP-02),
came in the third hour and taught the following.
1.
Generally
section 2 of all acts deals with definitions.
2.
At
the time of interpretation we must give importance to the definitions.
3.
Then
we must consider only the definition as found in the statute.
4.
If
definition is not given in an Act, we must refer to General Clauses Act, 1897.
5.
Section
2(h) of the Indian Contract Act defines contract as an agreement enforceable by
law.
6.
All
contracts are agreements, but all agreements need not be contacts because of
their lack of enforceability.
7.
Section
2(e) defines agreement as “every promise and every set of promises forming
consideration for each other is an agreement.” Consideration means something in
return.
8.
Promise
means offer plus acceptance.
9.
Reciprocalpromises are agreements.
10.
Section
2(a) of Contract Act defines offer as “when one person signifies to another the
willingness to do or to abstain from doing anything, with a view to obtaining
the assent of that other to such act or abstinence.”
11.
Assent
here means consent.
12.
Section
2(b) defines acceptance as “when the person to whom offer is made signifies his
assent thereto, the offer is said to be accepted.”
13.
Acceptance
generally shall be made by the person to whom the offer is made.
14.
An
agreement may have many component offers.
15.
When
can a particular agreement enforced? (Q)
16.
Section
10 provides certain elements to be satisfied for an agreement to be a contract
i.e. on its enforceability.
19.
For
the competence of a party to contract, a person must have the age of 18 years
i.e. attained majority. If a court has appointed a guardian for the minor, then
such minor shall be eligible to enter into a contract only after attaining the
age of 21.
20.
For
the ability of a person to contract, he must be sane. An Insane person shall
not enter into a contract.
21.
A sane person is one who knows what he does and the consequences thereof. If he
doesn’t he is insane or lunatic at that time.
22.
For
entering into a contract, free consent is a must. Where there is coercion, undueinfluence, fraud, misrepresentation and mistake of facts or law, there is no
free consent.
23.
Applying
some physical or mental force for arriving at a contact is called coercion.
24.
If
the relation between the parties of contract is that of a dominant and subservient relation,
then the subservient party shall be in undue influence of the dominant party.
Doctor patient relationship, teacher student relationship and advocate client
relationship are some examples for undue influence.
25.
Some
mistakes are void whereas some others are voidable.
26.
When
a dispute raises the question whether a contract is valid or not Section 10 of
the Indian Contract Act, 1872 applies.
27.
The
burden of proof in contract cases is upon the aggrieved party.
28.
In
voidable contracts, the person who is aggrieved shall have the full power to
declare the contract as void or valid.
29.
Lawfulconsideration is a must in contracts.
30.
If
the subject matter of the contract is illegal, it is unenforceable. Contracts
with lawful objects alone are enforceable.
31.
Do
not enter into a contract with an alien enemy, because such contracts may not be
legally enforceable.
32.
There
are five components for a valid contract.
33.
Contract
has derived from the Latin word contractum which means drive together or drawn
together. The purpose of contract is to drive all the parties of the contract
with the common intention.
Smt. Suma, then promised that we should
discuss different modes of offer in the next class.
All sessions
of the day ended there.
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