UNIT-5

The Indian Contract Act, 1872

Any commercial activity requires understanding among people concerned. This
understanding is often reduced into writing to give effect to the intention of the parties.
Such formal versions are known as contracts. These contracts define the rights and
obligations of various parties to facilitate easy performance of the contractual obligations.

The Indian Contract Ac,t 1872 codifies the legal principles that govern such ‘contracts’.
The Act basically identifies the ingredients of a legally enforceable valid contract in
addition to dealing with certain special type of contractual relationships like
indemnity, guarantee, bailment, pledge, quasi contracts, contingent contracts etc.

What is a Contract?
While all contracts are agreements, all agreements are not contracts. An agreement
which is legally enforceable alone is a contract. Agreements which are not legally
enforceable are not contracts but remain as void agreements which are not
enforceable at all or as voidable agreements which are enforceable by only one of the
parties to the agreement.
The above observation would raise a question in our minds as to what is the exact
meaning of the words ‘agreements’ and ‘contracts’.
An Agreement is a promise or a commitment or set of reciprocal promises or
commitments. An Agreement involves an offer or proposal by one person and
acceptance of such offer or proposal by another person. If the agreement is capable of
being enforced by law then it is a contract.
Now let us take a look at the definitions as per the Act. Section 2(b) while defining a
‘promise’ provides that “when the person to whom the proposal is made signifies his assent
thereto, the proposal is said to be accepted. Proposal when accepted becomes a promise”.

Section 2(e) of the Act defines agreements as ‘every promise and every set of
promises forming consideration for each other’. Section 2(h) of the Act defines the
term contract as “an agreement enforceable by law”.

1
 The above discussion can be diagrammatically represented as follows:

Proposal

Promise

Consideration

Agreement

Legally enforceable Legally not enforceable

contract voidable agreement void agreement

Essentials of a Valid Contract

In order to create a valid contract, the following elements should be present:

1. Intention to create legal obligation through offer and acceptance should be present.
2. Free consent of the parties is necessary.
3. Competency or capacity of parties to enter into contract must be ensured.
4. Lawful consideration & lawful object should be present, and
5. Agreement not expressly declared to be void.

The above important elements may be further analysed as under:

1. Offer and Acceptance: In the first place, there must be an offer and the said offer must
have been accepted. Such offer and acceptance should create legal obligations
between parties. This should result in a moral duty on the person who
promises or offers to do something. Similarly this should also give a right to the
promise to claim its fulfilment. Such duties and rights should be legal and not merely
moral.
2. Consent: The second element is the ‘consent’ of the parties. ‘Consent’
means ‘knowledge and approval’ of the parties concerned. This can also be understood as
identity of minds in understanding the term viz consensus ad idem. Further such a consent must
be free. Consent would be considered as free consent if it is not vitiated by coercion, undue
influence, fraud, misrepresentation or mistake. Wherever the consent of any party is
not free, the contract is voidable at the option of that party.
3. Capacity of the parties: The third element is the capacity of the parties to make a valid
contract. Capacity or incapacity of a person could be decided only after reckoning
2
 various factors. Section 11 of the Indian Contract Act,1872 elaborates on the issue by providing
that a person who- (a) Has not attained the age of majority (b) is of unsound mind and (c) is
disqualified from entering into a contract by any law to which he is subject.
4. Consideration: The fourth element is presence of a lawful
‘consideration’. ‘Consideration’ would generally mean ‘compensation’ for doing or omitting
to do an act or deed. It is also referred to as ‘quid pro quo’ viz ‘something in return for another
thing’. Such a consideration should be a lawful consideration.
5. Not expressly declared to be void: The last element to clinch a contract is that the
agreement entered into for this purpose must not be which the law declares to be either
illegal or void. An illegal agreement is an agreement expressly or impliedly prohibited by
law. A void agreement is one without any legal effects.

CLASSIFICATION OF CONTRACT

Contracts may be classified according to their

 Validity.
 Formation.
 Performance.

According to validity:

1. Valid Contract - A contract which contains all essential elements.

3
 2. Void contract - A contract which creases to be enforceable by law becomes
void when it ceases to be so enforceable. It is a contact which is valid in the
beginning. but later on due to some reasons it becomes void.

Example: A contract which creases to be enforceable by law becomes void when it ceases to
be so enforceable. It is a contact which is valid in the beginning but later on due to some
reasons it becomes void.

3. Voidable - A contract which is enforceable by law at the option of one party

but not at the option of other(s). Here, only one party can go to the court of
law, other party cannot go to the court of law.

4. Illegal Contract- Illegal contract are those that are forbidden by law. All illegal
contracts are hence void also. Because of the illegality of their nature they cannot be
enforced by any court of law. In fact even associated contracts cannot be
enforced. Contracts which are opposed to public policy or immoral are illegal.
Similarly contracts to commit crime like supari contracts are illegal contracts.

5. Unenforceable- It is one which is good in substance but due to some

technical defect such as absence in writing, signing one or more parties
cannot sue upon it.

According to formation:

1. Express contract - A contract would be an express contract if the

terms are expressed by words or in writing. Section 9 of the Act provides that if a
proposal or acceptance of any promise is made in words the promise is said to be
express.
2. Implied contract- Implied contracts in contrast come into existence by
implication. Most often the implication is by law and or by action. Section 9 of
the Act contemplates such implied contracts when it lays down that in so far as
such proposal or acceptance is made otherwise than in words, the promise is said
to be implied.

According to performance:

1. Executed contract - A contract which is completed. Where parties to the contract

have performed their respective obligations.
2. Executory contract - A contract which is to be performed in future.
3. Unilateral contract - In a contract one party has performed his obligation and other
person is yet to perform his obligation.
4. Bilateral contract - In a contract where both the parties have performed their
obligation.

4
 Distinction between Agreement and Contract

Agreement Contract
1. Every promise or set of promises A agreement enforceable by law is a
forming consideration for each other is Contract
an agreement

2. All agreements are not contracts. all contracts are agreements,

3. Offer and acceptance together constitute Agreement and legal enforceability together
an agreement constitute a contract

4. An agreement may not create legal A contract creates legal obligations

obligation

5. Agreement is a wider concept Contract is a narrow concept

6. Agreement is not concluding and Contract is concluding and binding

binding

ARBITRATION
It is one of the oldest methods of settling civil disputes between two or more persons by
reference of the dispute to an independent and impartial third person, called arbitrator. Instead
of litigating the matter in the usual way through the courts, it saves time and expense It also
avoids unnecessary technicalities and at the same time ensures “Substantial justice within
limits of the law”
Arbitration is a domestic forum. It is a forum other than a Court of law for determination of
disputes and differences, after hearing both the sides, in a judicial manner.
The Arbitration and Conciliation Act 1996 provides legal frame work for settlement of
disputes by mutual settlement outside the court. Central Government may make rules for
carrying out the provisions of this act subjected to the approval of the Parliament. Arbitration
is an arrangement agreed upon by the parties concerned to refer the disputes to a third party
for settlement.

5
Objectives of the Act:
 To comprehensively cover both international and domestic arbitration and conciliation
 To make provisions for an arbitral procedure which is fair, efficient and capable of
meeting the needs of the specific arbitration.
 To provide that the arbitral tribunal gives reasons for its arbitral award.
 To ensure that the arbitral tribunal remains within the limits of its jurisdiction.
 To minimise supervisory role of courts in the arbitral process.
 To permit an arbitral tribunal to use mediation, conciliation or other procedures during
the arbitral proceedings to encourage settlement of disputes.
 To provide that every final arbitral award is enforced in the same manner as if it were
a decree of the court
 To provide that a settlement reached by the parties as a result of conciliation
proceedings will have the same status and affect as an arbitral award on agreed terms
on the substance of the dispute rendered by an arbitral tribunal.

ARBITRATION AGREEMENT
It means an agreement by the parties to submit to arbitration all or certain disputes which
have arisen or which may arise between them in respect of a defined legal relationship,
whether contractual or not . A non contractual legal relationship for example may arise from a
tort. E.g. ; A agrees to supply 100 quintals of Dehra Dun rice to B. He supplies the rice but B
disputes about the quality of the rice. If they agree to refer the dispute to arbitration, they will
be referring an existing or present dispute.

ESSENTIALS OF ARBITRATION AGREEMENT

 It must be in writing though it may not be contained in formal document.
 It must have all the essential elements of valid contract. If it is vague and uncertain
and not capable of being made certain, there is really no agreement in the law.
 It must be to refer a dispute, present or future, between the parties to arbitration
 It may be in the form of an arbitration clause in a contract or in the form of a separate
agreement.
 The reference in a contract to a document containing an arbitration clause constitutes
an arbitration agreement if the contract is in writing and the reference is such as to
make that arbitration clause part of the contract.

ADVANTAGES OF ARBITRATION:
 Avoidance of publicity for the proceedings are held in private
 Simplicity of procedure
 Avoidance of delay and uncertainty involved in appeals
6
  Reduction of expenses in most cases
 Saving of time Appointment of a person having the required technical qualification as
arbitrator
 Social efficiacy, the award of the arbitrator being the decision by the consent of
parties Candor (frankness) in presenting facts and figures

DISADVANTAGES OF ARBITRATION
 The arbitrator may be incompetent
 Injustice may result from the informality of the procedure

POWER OF JUDICIAL AUTHORITY TO REFER PARTIES TO ARBITRATION

Conditions for stay of legal proceedings:

 There must be a valid and a subsisting arbitration agreement capable of being

enforcement. The subject matter must be within the scope of arbitration agreement.
 The application must be made by a party to the arbitration agreement or by some
person claiming under him.
 The applicant must make the application at the earliest stage of the proceedings.
 The application must be made to the judicial authority before which the proceedings
are pending.
 The application must be accompanied by the original arbitration agreement.
 The judicial authority must be satisfied that there is no sufficient reason why the
matter should not be referred.

MATTERS WHICH MAY BE REFERRED

 Determination of damages in breach of contract
 Question of validity of marriage ( maintenance to wife)
 Question of law (separation)
 Matters of personal or private rights of the parties
 Disputes regarding compliment and dignity
 Time barred claims

MATTERS WHICH MAY NOT BE REFERRED

 Matrimonial matters (divorce)
 Testamentary matters lie (Validity of Will)
 Insolvency matters
 Matters relating to public charities and charitable trusts
 Lunacy proceedings
 Matters relating to the guardianship of a minor
7
  Matters of criminal natures
 Execution proceedings

ARBITRATOR
The person who is appointed to determine differences and disputes is called the arbitrator or
arbitral tribunal. The proceedings before him is called arbitration proceedings. The decision is
called an AWARD.

Appointment of Arbitrator
The parties can agree on a procedure for appointing the arbitrator or arbitrators. If they are
unable to agree, each party will appoint one arbitrator and the two appointed arbitrators will
appoint the third arbitrator who will act as a presiding arbitrator. [section 11(3)]. The party
can request Chief Justice to appoint an arbitrator. [Section 11(4)]. In case of international
commercial dispute, the application for appointment of arbitrator has to be made to Chief
Justice of India. In case of other domestic disputes, application has to be made to Chief
Justice of High Court within whose jurisdiction the parties are situated.

Challenge to appointment of Arbitrator

An arbitrator is expected to be independent and impartial. If there are some circumstances
due to which his independence or impartiality can be challenged, he must disclose the
circumstances before his appointment. Appointment of Arbitrator can be challenged only if
(a) Circumstances exist that give rise to justifiable doubts as to his independence or
impartiality
(b) He does not possess the qualifications agreed to by the parties. Appointment of arbitrator
cannot be challenged on any other ground. The challenge to appointment has to be decided by
the arbitrator himself. If he does not accept the challenge, the proceedings can continue and
the arbitrator can make the arbitral award.

However, in such case, application for setting aside arbitral award can be made to Court. If
the court agrees to the challenge, the arbitral award can be set aside. Thus, even if the
arbitrator does not accept the challenge to his appointment, the other party cannot stall further
arbitration proceedings by rushing to court. The arbitration can continue and challenge can be
made in Court only after arbitral award is made.
8
Composition of Arbitral Tribunal
Any number, as long as it is an even number, else a single arbitrator may be appointed. Any
nationality unless otherwise agreed by the parties.

Impartial and independent

Each party may appoint one arbitrator, and the two appointed arbitrators shall appoint the
third arbitrator who shall act as the presiding arbitrator. One or more experts may be
appointed to report on specific issues.

If one party fails to appoint arbitrator within 30 days, or if the two appointed arbitrators fail to
agree on the third arbitrator, then the Chief Justice of High Court may appoint any person or
institution. Chief Justice of High Court will pay due regard to any qualifications required of
the arbitrator by the agreement of the parties and any other considerations required to appoint
an independent and impartial arbitrator.

9
Conduct of Arbitral Proceedings
The parties shall be treated with equality and each party shall be given a full opportunity to
present their case. The parties are free to agree on the procedure to be followed by the arbitral
tribunal in conducting its proceedings. Failing any agreement, the A. T. may conduct the
proceedings in the manner it considers appropriate. It has the power to determine
admissibility, relevance, materiality and weight of any evidence

Location may be decided by parties, failing which, decision may be taken by A. T. The
arbitral proceedings for a particular dispute shall commence on the date on which a request
for arbitration is received by the respondent. Any language/s; failing which A.T. may decide.
A.T. may order any documentary evidence to be accompanied by translation. 18

Intervention by Court
One of the major defects of earlier arbitration law was that the party could access court
almost at every stage of arbitration - right from appointment of arbitrator to implementation
of final award. Thus, the defending party could approach court at various stages and stall the
proceedings. Now, approach to court has been drastically curtailed. In some cases, if an
objection is raised by the party, the decision on that objection can be given by Arbitral
Tribunal itself. After the decision, the arbitration proceedings are continued and the aggrieved
party can approach Court only after Arbitral Award is made. Appeal to court is now only on
restricted grounds. Of course, Tribunal cannot be given unlimited and uncontrolled powers
and supervision of Courts cannot be totally eliminated.

DUTIES OF ARBITRATORS
 First duties – After receiving notice of appointment the arbitrator should see that his
appointment in order. If it is not it is to be put in order.
 Enter into the reference and make an award with in a prescribed time.
 Act judicially and impartially.
 Shall have no interest in the subject matter of the dispute.
 Disclose in writing any circumstances likely to give rise to justifiable doubts as to his
independence or impartially.
 Shall not misconduct himself or the proceedings in any way.
 Encourage settlement of dispute by mediation or conciliation or other proceeding.
 Shall observe the rules of natural justice.
 Shall give a final award on the matters refer to him, unless he is empowered to make
several awards.

10
Arbitral Award
Decision of Arbitral Tribunal is termed as 'Arbitral Award'. Arbitrator can decide the dispute
ex aequo et bono (In justice and in good faith) if both the parties expressly authorize him to
do so. The decision of Arbitral Tribunal will be by majority. The arbitral award shall be in
writing and signed by the members of the tribunal. The award must be in writing and signed
by the members of Arbitral Tribunal. It must state the reasons for the award unless the parties
have agreed that no reason for the award is to be given. The award should be dated and place
where it is made should be mentioned. Copy of award should be given to each party. Tribunal
can make interim award also.

Form and Contents of Award

An arbitral award shall be made in writing and shall be signed by the members of the arbitral
tribunal. An arbitral award shall state the reasons upon which it is based unless so agreed by
parties. The arbitral award shall state its date and the place of arbitration.

Recourse against Arbitral Award

An arbitral award may be set aside by the court only if- (a) The party making the application
furnishes proof that-
(i) A party was under some incapacity, or
(ii) The arbitration agreement is not valid under the law to which the parties have
subjected it or
(iii) The party making the application was not given proper notice of the appointment of
an arbitrator or of the arbitral proceedings or was otherwise unable to present his
case; or
(iv) The arbitral award deals with a dispute not contemplated by or not falling within the
terms of the submission to arbitration, or it contains decisions on matters beyond the
scope of the submission to arbitration
(v) The composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties.

(b) The court finds that- (i) The subject-matter of the dispute is not capable of settlement by
arbitration under the law for the time being in force, or (ii) The arbitral award is in conflict
with the public policy of India. An award is in conflict with the public policy of India if the
making of the award was induced or affected by fraud or corruption.
11
An application for setting aside may not be made after three months have elapsed from the of
the arbitral award On receipt of an application the court may adjourn the proceedings for a
period of time, in order to give the A.T. an opportunity to take such action that will eliminate
the grounds for setting aside the arbitral award.

Law of limitation applicable

Limitation Act, 1963 is applicable. For this purpose, date on which the aggrieved party
requests other party to refer the matter to arbitration shall be considered. If on that date, the
claim is barred under Limitation Act, the arbitration cannot continue. If Arbitration award is
set aside by Court, time spent in arbitration will be excluded for purpose of Limitation Act.
[so that case in court or fresh arbitration can start].

Conciliation

Conciliation is the most important method for prevention and settlement of industrial disputes
through third party intervention. It is an attempt to reconcile the views of disputants to bring
them to an agreement. It is a process by which representatives of the workers and the
employers are brought together before a third person or a group of persons with a view to
persuade them to arrive at an agreement among themselves by mutual discussion between
them.

Adjustment and settlement of a dispute in a friendly and non-antagonistic manner by using a

non binding procedure. It
• Applies to conciliation of disputes arising out of legal relationships, whether
contractual or not, and to all proceedings relating thereto.
• Party wanting conciliation shall “INVITE” other party to conciliate.
• Proceedings commence only when a reply is received within 30 days, else deemed
rejection of invitation
• On rejection or deemed rejection first party to re-inform the other.

Conciliators

12
 • Number: can be one or if parties then two or three (that suggests that it cannot be
more than three)
• Appointment:
– One – By mutual agreement of parties.
– Two– One each, by each party.
– Three– One by each party and 3rd by mutual agreement.

Statements-Before, During & After the proceedings

• Before proceedings conciliator shall request each party to submit a statement
explaining nature of dispute.
• The statement must clearly specify and state the conciliators position and the facts and
grounds in support thereof.
• During the proceedings the conciliators can call for further information from the
parties and S.71 calls for cooperation by parties.

Relevant Provisions at a glance

• Conciliators not bound by Code of Civil Procedures 1908 or The Indian Evidence Act
1872.
• Guided by principles of objectivity, fairness and justice.
• Proceedings in the manner as conciliator deems appropriate.
• Conciliator may take administrative assistance.
• Place of conciliation determined by conciliator after consultation with parties.

COMMENCEMENT OF CONCILIATION PROCEEDINGS (Sec.62) :

Invitation: The party initiating conciliation shall send to the other party a written invitation
to conciliate, briefly the subject of the dispute{sec.62(1)}.Conciliation proceedings shall
commence when the other party accepts in writing the invitation to conciliate{sec.62(2)}.If
the other party rejects the invitation, there will be no conciliation proceedings{sec.62(3)}
Rejection if no reply: If the party initiating conciliation does not receive a reply within 30
days from the date on which he sends the invitation, or within such other period of time as
specified in the invitation, he may elect to treat this as a rejection of the invitation to
conciliate and if he so elects, he shall inform in writing the other party accordingly.
{sec.62(4)}.

13
Appointment of conciliators
In the conciliation proceedings with one conciliator, the parties must agree on the name of a
sole conciliator. In the conciliation proceedings with two conciliator, each party may appoint
one conciliator. In the conciliator proceedings with three conciliator, each party may appoint
one conciliator and the parties may agree on the name of the third conciliator who shall act as
the presiding conciliator {sec64 (1)}.
Role of conciliator (Sec.67):
The conciliator shall assist the parties in an independent and impartial manner in their attempt
to reach an amicable settlement of their dispute.{sec.67(1)}. He shall be guided by principles
of objectivity, fairness and justice, giving among other things- the rights and obligation of the
parties, the usages of the trade concerned the circumstances surroundings the dispute,
including any previous business practices between the parties {sec.67(2)}.
Conduct of proceedings
The conciliator may conduct the conciliation proceedings in such a manner as he considers
appropriate, taking into account- the circumstances of the case the wishes the parties may
express, including any request by a party that the conciliator hear oral statements the need for
a speedy settlement of the dispute. Proposals for settlement of disputes: the conciliator may,
at any stage of the conciliation proceedings, make proposals for a settlement of the disputes.
Such proposals need not be in writing and need not be accompanied by a statement of the
reason.
Administrative assistance (sec.68):
In order to facilitate the conduct of the conciliation proceedings, the parties, or the
conciliator with the consent of the parties, may arrange for administrative assistance by a
suitable institution or person.
Communication between Conciliator and Parties
Communication the conciliator may invite the party to communicate with them orally or in
writing Place of meeting the place shall be determined by the conciliator. Disclosure of
information when the conciliator receives information about the dispute subjected to specific
condition that must be kept confidential, the conciliator shall not disclose that information to
other parties. Corporation of parties with conciliator the party shall in good faith corporate
with the conciliator Suggestion by parties for settlement of disputes each party may, on his
own initiative or at the invitation of the conciliator submit the suggestion for settlement of
dispute.

14
Termination of conciliation proceedings (sec.76):
The conciliation proceedings shall be terminated-
 By the signing of the settlement agreement by the parties, on the date of the
agreement
 By a written declaration of the conciliator, after consultation with the parties, to the
effect that the further efforts at the conciliation are no longer justified, on the date of
the declaration.
 By a written declaration of the parties addressed to the conciliator to the effect that the
conciliation proceedings are terminated, on the date of the declaration.
 By the written declaration of the party to the other party and the conciliator, if
appointed, to the effect that the conciliation proceedings are terminated, on the date of
declaration.
Sharing of Costs
The cost shall be borne equally by the parties unless the settlement agreement provide for a
different apportionment. All the other expenses incurred by a party shall be borne by that
party {sec.78(3)}.

Deposit of advance for the costs (sec.79):

The conciliator may direct each party an equal amount as an advance for the costs of the
conciliation which he expects will be incurred{sec.79(1)}.further during the course of the
conciliation proceedings, the conciliator may direct supplementary deposits in an equal
amount from each party{sec.79(2)}.

Default by parties: If the required deposits are not paid in full by both parties within 30
days, the conciliator may suspend the proceedings or may make a written declaration of
termination of the proceedings to the parties, effective on the date of the declaration {sec.
79(3)} the conciliator shall render an accounting to the parties of the deposits received and
shall return any unexpended balance to the parties{sec.79(4)}.

15