Torts Part 1 Short Notes

1) Pigeon-hole theory

Pigeonhole is a theory propounded by Salmond, an authority in the field of tort law. Salmond believes that the specific torts are like pigeon-holes and to prove your case one must prove that the wrong committed against him falls within one of the pigeonholes. This is, understandably, called the pigeonhole theory.

2) Essential elements of tortuous liability

There are certain general conditions which must be satisfied before a person can be held liable for any tort.

The below conditions are essential:

1. Wrongful act -act or omission

2. Should result in legal damage

3. Legal remedy

3) Name few defenses for tortuous liability

1. Volenti non fit injuria
2. Act of God
3. Inevitable accident
4. Private defense
5. Acts of necessity
6. Mistake
7. Statutory authority
8. Judicial Acts & quasi judicial
9. Parental -quasi parental authority
10. Exercise of common rights

4) Write definition Winfield of torts

Tortious liability arises from the breach of duty primarily fixed by law. This duty is towards persons generally and its breach is redressable by an action for unliquidated damages

Winfield definition is considered as the best definition. His definition has got three components Cause, Effect, Remedy.

This definition can be understood by following meaning:

1. The tort is arising from breach of duty primarily fixed by law.

2. The effect of this duty is towards persons generally

5) Explain “Qui facit per alium facit per se“?

He who has done through others is deemed to be done it for himself. This liability arises only when there is a relationship between the persons.

According to this maxim, if in the nature of things the master is obliged to perform the duties by employing servants, he is responsible for their act in the same way that he is responsible for his own acts

Constitution Part 1 Short Notes

1) Preamble to the Constitution of India

The preamble to the Constitution of India is an act sets out the main objectives which the legislation is intended to achieve.

The preamble is not an integral part of the Indian constitution to be enforceable in a court of law. However, Supreme Court of India has, in the Kesavananda case, recognised that the preamble may be used to interpret ambiguous areas of the constitution where differing interpretations present themselves.

As originally enacted the preamble described the state as a ""sovereign democratic republic". In 1976 the Forty-second Amendment changed this to read "sovereign socialist secular democratic republic

2) What is the nature of Indian Constitution

Typically, democratic constitutions are classified into two categories - Unitary and Federal. In a unitary constitution, all the powers are concentrated in a central authority. The states or the constituents of the country are subordinate to such central authority. In a federal constitution, powers are distributed among the center and the states. States are not subordinates of the center. According to Prof. Wheare, the constitutions of USA, Australia, and Switzerland are prime examples of a federal constitution.
Dr. Ambedkar has categorically said in Constituent Assembly discussions that notwithstanding certain provisions that centralize the powers, Indian Constitution is essentially federal. Prof. Wheare and some other academicians, however, are hesitant in calling it a federal constitution and prefer to term it as "quasi-federal" or "federal with strong centralizing tendency".

3) Nature of Citizenship

The Indian Constitution, which came into force on 26th January 1950 provides for single citizenship for the entire country. Matters concerning Indian citizenship are contained in Articles 5 to 11 in Part II of the constitution of India. The law states that any person born in India on or after 26th January 1950 but before the commencement of the 1986 Act was a citizen of India. A person born in India after 1 July 1987 was a citizen of India if one of the two parents was a citizen of India at the time of birth. The law further states that those born in India on or after 3rd December 2004 are considered citizens of India only if both of their parents are citizens of India or if one parent is a citizen of India and the other is not an illegal migrant at the time of birth.

4) Definition of state

A state is a political association with effective sovereignty over a geographic area and representing a population. These may be nation states, sub-national states or multinational states. A state usually includes the set of institutions that claim the authority to make the rules that govern the people of the society in that territory, though its status as a state often depends in part on being recognized by a number of other states as having internal and external sovereignty over it.

Union generally refers to two or more things joined into one, such as an organization of multiple people or organizations, multiple objections combined into one, and so on.

“the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

5) Judicial review

Judicial review is adopted in the Indian constitution from the constitution of the United States of America. In the Indian constitution, Judicial Review is dealt with under Article 13. Judicial Review refers that the Constitution is the supreme power of the nation and all laws are under its supremacy. Article 13 states that

1. All pre-constitutional laws, after the coming into force of constitution, if in conflict with it in all or some of its provisions then the provisions of constitution will prevail and the provisions of that pre-constitutional law will not be in force until an amendment of the constitution relating to the same matter. In such situation the provision of that law will again come into force, if it is compatible with the constitution as amended. This is called the Theory of Eclipse

2. In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly must be compatible with the constitution, otherwise the laws and amendments will be deemed to be void-ab-initio.

In such situations, the Supreme Court or High Court interprets the laws as if they are in conformity with the constitution. If such an interpretation is not possible because of inconsistency, and where a separation is possible, the provision that is inconsistent with constitution is considered to be void. In addition to article 13, articles 32, 124, 131, 219, 226 and 246 provide a constitutional basis to the Judicial review in India.

Family Law1 Part1 Short Notes

1) Kartha
Kartha is the senior most male member of the family. Only the Kartha has the right to manage the property and business of the HUF (Hindu undivided family). Kartha can enter into contract on behalf of the HUF and bind all the members to the extent of their share in the property/business. If the coparceners so desire, all the coparceners and Kartha may authorize any one or more adult coparceners to manage the business

2) Anticipate debt
Yet to find the answer

3) Smriti the source of law
Smrit means "what is remembered". With smrutis, a systematic study and teaching of Vedas started. Many sages, from time to time, have written down the concepts given in Vedas. So it can be said that Smrutis are a written memoir of the knowledge of the sages. Immediately after the Vedic period, a need for the regulation of the society arose. Thus, the study of Vedas and the incorporation of local culture and customs became important. It is believed that many smrutis were composed in this period and some were reduced into writing, however, not all are known. The smrutis can be divided into two - Early smritis (Dharmasutras) and later smritis (Dharmashastras).

4) Requirements for a valid custom
It should be Ancient, Continuous, Certain, Reasonable, Not against morality, Not against public policy, Not against any law

5) Coparcenary within coparcenary
It is possible that separate coparcenaries may exist within a coparcenary.
Example: a coparcenary consists of A and his three sons B,C and D and two sons of C, CS and CS1 and three sons of D, DS, DS1 and DS2, C and D acquire separate properties and die. CS and CS1 inherit the separate property of C and between themselves constitute a coparcenary. DS, DS1 and DS2 inherit Ds separate properties and constitute a coparcenary headed by A two sub-coparcenaries come into existence. If sons are born to CS, CS1 or DS, DS1 and DS2 they will get a birth right not merely in the coparcenary headed by A but also in their respective sub-coparcenaries.

6) Kartha power of alienation
The Manager of a joint Hindu Family has the power to alienate (transfer) for value the joint family property so as bind the interests of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate. That the payment of debts incurred for family business or other necessary purpose constitutes a legal necessity.

7) son's pious obligation
If a debt contracted by the father has not been repaid during his lifetime, by himself, it must be restored, after his death, by his sons. Should they separate, they shall repay it according to their respective shares. If they remain united, they shall pay it in common, or the manager shall pay it for the rest, no matter whether he may be the senior of the family or a younger member, who, during the absence of the oldest, or on account of his incapacity, has undertaken the management of the family estate.

8) To whom Hindu law applies
Hindu by Religion - A person who is Hindu, Jain, Bauddha, or Sikh by religion. Hindu by Birth - A person who is born of Hindu parents. If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu. Persons who are not Muslim, Christian, Jew, or Parsee by religion. Persons who are not governed by any other religious law will be governed by Hindu Law.

9) Joint Family
A Hindu Joint Family or Hindu undivided family (HUF) or a Joint Family is an extended family arrangement prevalent among Hindus of the Indian subcontinent, consisting of many generations living under the same roof. All the male members are blood relatives and all the women are either mothers, wives, unmarried daughters, or widowed relatives, all bound by the common sapinda relationship. The joint family status being the result of birth, possession of joint cord that knits the members of the family together is not property but the relationship.
Key aspects of Joint Family are:-
• head of the family takes all decision
• all members live under one roof
• share the same kitchen, a common place of worship
• Income and expenditure in a common pool- property held together.

Ref:
http://hanumant.com/SourcesOfHinduLaw.html
http://www.scribd.com/doc/33115992/2-Hindu-Law-of-Coparcenary-and-Its-Composition

I am going to college again

After so many years I am going to college again , to pursue my dream course Law (LLB.).
I made few friends (first year law students) before going to college, during Lawcet counseling in JNTU. Even though I am able attend few classes, the class are very interesting and teaching is very good. You may be wondering why this time I am feeling teaching it good, may be the teaching is good during my graduation (BTech-Chem) and Post Graduation (MS-IT) also but at time I am more interested in completing the course rather than understand the subjects to make my career.

Now my next important task is to get good grip on the Law subjects and ofcourse need to get good marks.
1) Gather information from internet (Google, Law Journals, and Wiki etc)
2) Collect the Notes, Previous papers, materials from classmates, seniors and students from other colleges.
3) Need to go through blogs of other students.
4) Need to buy books, borrow books from library and from friends.

My future tasks will be collecting information, learning the subjects and keep blogging in my blog.

Contract Law1 Part1 Short Notes

1) Privity of contract

The doctrine of privity in contract law provides that a contract cannot confer rights or impose obligations arising under it on any person or agent except the parties to it.

The premise is that only parties to contracts should be able to sue to enforce their rights or claim damages as such. However, the doctrine has proven problematic due to its implications upon contracts made for the benefit of third parties who are unable to enforce the obligations of the contracting parties.

2) Voidable, avoidable and unenforceable contracts

In general, there are three classifications of contracts that are not binding:

Void: If a contract is held to be void, the contract has never come into existence.

For example, a contract is void if it is based on an illegal purpose or contrary to public policy; the classic example is a contract with a hit man. Such a contract will not be recognized by a court, and cannot be enforced by either party.

Voidable Contract - 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. [section 2(i)]. - - (a) When consent is obtained by coercion, undue influence, misrepresentation or fraud is voidable at the option of aggrieved party i.e. party whose consent was obtained by coercion/fraud etc. However, other party cannot avoid the contract. (b) When a contract contains reciprocal promises and one party to contract prevents the other from performing his promise, the contract becomes voidable at the option of the party to prevented. (section 53). Obvious principle is that a person cannot take advantage of his own wrong (c) When time is essence of contract and party fails to perform in time, it is voidable at the option of other party (section 55). A person who himself delayed the contract cannot avoid the contract on account of (his own) delay.

Avoidable: A contract is avoidable if one of the parties has the option to terminate the contract. Contracts with minors are examples of avoidable contracts.

Unenforceable: If a contract is unenforceable, neither party may enforce the other's obligations. For example, in the United States, a contract is unenforceable if it violates the Statute of frauds. An example of the above is an oral contract for the sale of a motorcycle for US$ 5,000 (because in the USA any contract for the sale of goods over US$500 must be in writing to be enforceable).

3) Coercion

Coercion (Section 15): "Coercion" is the committing, or threatening to commit, any act forbidden by the Indian Penal Code, or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.

4) Undue influence

Undue influence (Section 16): "Where a person who is in a position to dominate the will of another enters into a contract with him and the transaction appears on the face of it, or on the evidence, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in the position to dominate the will of the other."

5) Consideration

Some right, interest, profit or benefit accruing to the one party or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other
(something of value given by one party, in return for the performing of a contract, or for the promise to perform a contract, by the other party)

Under contract law, there is no contract if there is no consideration. But consideration does not necessarily have to be quantified or quantifiable in monetary terms. Any discernible detriment to one of the parties could be that party's consideration.

In one case, Hubbs v. Black, 1918, agreeing not to take a certain plot in a cemetery was considered to be sufficient consideration. Giving a right to sue on a "bona fide" claim has been deemed to be adequate consideration. Also, the courts don't really care about the adequacy of the consideration. This is the business of the parties and not a matter for judicial interference.

6) Standard form contract

A standard form contract (sometimes referred to as an adhesion contract or boilerplate contract) is a contract between two parties that does not allow for negotiation, i.e. take it or leave it. It is often a contract that is entered into between unequal bargaining partners, such as when an individual customer is given a contract by the salesperson of a multinational corporation. The customer is in no position to renegotiate the standard terms of the contract and the company's representative usually does not have the authority to do so. While adhesion contracts, in and of themselves, is not illegal per se, there exists a very real possibility for unconscionability.

7) Wagering Agreements

A contract which is of the nature of wager. Contracts of this nature include various common forms of valid commercial contracts, as contracts of insurance, contracts dealing in futures, options, etc. Other wagering contracts and bets are now generally made illegal by statute against betting and gambling, and wagering has in many cases been made a criminal offence.

Agreements by way of wager are void; and no suit shall be brought for recovering anything alleged to be won on any wager, or entrusted to any person to abide the result of any game or other uncertain event on which any wager is made.

8) Essentials of Contract

Having ascertained the particular features of contract as a juristic conception, the next step is to ascertain how contracts are made. A part of the definition of contract being that it is an agreement enforceable at law; it follows that we must analyze the elements of a contract such as the law will hold to be binding between-the parties to it.

As there must be an agreement directly contemplating and resulting in an obligation, and the agreement must be enforceable in the law, therefore -

(a) There must be a distinct communication by the parties to one another of their intention, or an offer and acceptance.

(b) The agreement must possess the marks which the law requires in order that it may affect the legal relations of the parties, and be an act in the law. Therefore -

(1) It must be in the form required by law.

(2) There must be a consideration, when required by law.

(c) The parties must be capable in law of making a valid contract.

(d) The consent expressed in offer and acceptance must be genuine.

(e) The objects which the contract proposes to effect must be legal.

9) Revocation

Revocation is the act of recall or annulment. It is the reversal of an act, the recalling of a grant, or the making void of some deed previously existing.

In the law of contracts, revocation is a type of remedy for buyers when the buyer accepts a nonconforming good from the seller. Upon receiving the nonconforming good, the buyer may choose to accept it despite the nonconformity, reject it (although this may not be allowed under the perfect tender rule and whether the Seller still has time to cure), or revoke their acceptance. Under Article 2 of the Uniform Commercial Code, for a buyer to revoke, he must show (1) the goods failed to conform to the contract and (2) it substantially impaired the value of the goods (this is a question of fact).

An offer may generally be revoked at any time before it has been accepted, provided that the revocation is communicated to the offeree. This is so even though the offeror has indicated that he will keep his offer open for a specified time. Where, however, the offeror has contracted to keep his offer open, revocation of that offer will amount to a breach of the contract of option. An offer can't be revoked after acceptance.

10) minor's agreement

Who is under 18 yrs that person is minor and a minor's agreement is ab initio void and that is declared by court in Mohari biwi v. Dharmodas ghosh case.

An agreement is said to be "void ab initio" if it has at no time had any legal validity.

This is the case law where Dharmodas Ghose was a minor & Mohri Bibi's husband has given him loan...
When Mohri Bibi's husband died, she demanded loan money back from Dharmodas Ghose but he denied...
The court resolved that "A contract with or by a minor is void and a minor therefore cannot bind himself by a contract as he is not competent to contract". He is not liable to pay the loan

11) free consent

A consent is said to be free when it not caused by coercion or undue influence or fraud or misrepresentation or mistake.

Elements Vitiating free Consent

1. Coercion (Section 15): "Coercion" is the committing, or threatening to commit, any act forbidden by the Indian Penal Code, or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.

2. Undue influence (Section 16): "Where a person who is in a position to dominate the will of another enters into a contract with him and the transaction appears on the face of it, or on the evidence, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in the position to dominate the will of the other."

3. Fraud (Section 17): "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto of his agent, or to induce him to enter into the contract.

4. Misrepresentation (Section 18): " causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement".

5. Mistake of fact (Section 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".