1.Define tort. What is Injuria Sine Damnum and Damnum Sine Injuria. Ans.

Introduction: The term tort is derived from the Latin word Tortum which means to twist. It signifies a conduct which is unlawful. Thus a tort may be said to be a civil wrong, which results in damages, and gives rise to a remedial right to bring an action for the recovery of unliquidated damages. A tort, in common law jurisdictions, is a civil wrong which unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act, called a tortfeasor. Definition:consists of two parts part a): the province of tort is to allocate responsibility for injurious conduct (said by Lord Denning) part b) : tortious liability arises from the breach of a duty primarily fixed by law, such duty is towards persons generally and its breach is redressible (actionable) by an action for unliquidated damages (no set amount court considers amount) Other Definitions 1.Salmond: It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. 2. Winfield: Tortious liability arises from the breach of a duty primarily fixed by law. This duty is towards persons generally and its breach is redressible by an action for unliquidated damages. 3.Frazer:- It is an infringement of a right in rem of a private individual giving a right to compensation at the suit of the injured party. Meaning of Tort: When we refer all the above definition tort means as a civil wrong

which is redressible by an action for unliquidated damages and which is other than a mere breach of contract or breach or trust.
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 Tort is a civil wrong This civil wrong is other than a mere breach of contract or breach of trust This wrong is redressible by an action for unliquidated damages. The essential elements of torts are as follows, To constitute a tort the following elements must be present. 1.A wrong ful Act committed by the defendant : The first essential element of a tort is that the defendant must be guilty of having committed a wrongful act.A wrongful act is an act which is contrary to law. It also includes an omission to perform a legal duty.Thus a wrongful act means infringement of a legal duty. 2.The wrongful act must result in legal damage to another person: Yet another essential element of a tort is that wrongful act committed by the defendant must result in a legal damage to the plaintiff. Legal damage means neither actual or pecuniary damages. Legal damage takes place when there is a breach of legal duty or where plaintiffs right recognized by law is infringed. 3.The wrongful act must be of such a nature as may give rise to a legal remedy in the form of an action for damages. Whether a damage is a legal damage or not can be understood with the help of 2 important maxims a. INJURIA SINE DAMNO: it means, Injuria means infringement of a legally protected interest (ie right) of the plaintiff. Sine means without damno means actual physical loss whether in terms of money, comfort, health, service or the like. So, Injuria Sine damno means that if a private right is infringed, the plaintiff will have a cause of action even if the actual physical damage is not there.

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It means that if a private right is infringed the plaintiff will have a cause of action even though the plaintiff has not suffered any actual loss or damage. Thus, according to this maxim what is necessary is the infringement of a legal right and not the proof of actual loss or damage. CASE LAW: 1. ASHY V/S WHITE FACTS OF THE CASE In this case, the plaintiff was a legally qualified voter of the Borough of Ayles bury and the defendant was the returning officer. The defendant wrongfully, maliciously and fraudulently refused to register the vote of plaintiff. Thus the legal right of the plaintiff to cast his vote was infringed. But he did not suffer any actual loss because the candidate for whom he wanted to tender the vote was elected. Orders: It was held that the action was allowed on the ground that the violation of plaintiffs statutory right was an injury for which he must have a remedy and was actionable without proff of pecuniary damage. 2.Bhim Singh v/s State of Jammu and Kashmir. [AIR 1986 Sc. 494] FACTS OF THE CASE In this case the petitioner was an MLA of Jammu and Kashmir Assembly was wrongfully detained by the police while he was going to attend the Assembly session. He was not produced before the magistrate within the requiste period. As the consequence of this the member was deprived of his constitutional right to attend the Assembly session. There was also violation of fundamental right to personal liberity guaranteed under Art 21 of the constitution. Orders: In this case Honble Supreme ordered to pay exemplary damages of Rs.50,000/ - to the petitioner

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Thus the maxim Injuria Sine damno means that infringement of a legal right will give rise to an action irrespective of the fact that no actual loss or damage has taken place. b. DAMNUM SINE INJURIA This Maxim means that no action will lie if there is actual loss or damage but there has been no infringement of legal right Where there has been no infringement of any legal right, the mere fact of harm or loss will not render such act or omission actionable although the loss may be substantial or even irreparable. Damage so done is called damnum sine Injuria That is actual or substantial loss without infringement of any legal right and in such cases no action lies. CASE LAW: 1. GLOUCESTAR GRAMMER SCHOOL CASE FACTS OF THE CASE In this case the defendant who was school master setup a rival school to that of plaintiffs and because of the competition, the plaintiff had to reduce there fees from 40 pence to 12 pence and thus suffered damages. Orders: In this case it was held that no remedy for the loss suffered by them because there was no infringement of any legal right. 2.MOGUL STEAMSHIP COMPANY V/S MAC GREGOR.GOW & COMPANY. FACTS OF THE CASE In this case the defendants were owners of certain ships and in order to secure an exclusive trade for themselves they formed an association and reduced freight charges. The plaintiff company thus had to sustain loss because he had to reduce the freight charges for compensation. He filed for damages. Orders: It was held no action lay for the acts of the defendants were done with the lawful objects and the plaintiff had no cause of action.

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The Maxim clearly states that where there is no infringement of legal right there is no damages [remedy] 3.LEGAL REMEDY The Third essential characteristics of a tort is that the wrongful act complained of must be such that it gives rise to a legal remedy in the form of action for damages. The essential remedy for a tort is an action for damages. Although there are other remedies also, yet, it is principally the right to damages that brings such wrongful acts within the category of torts. CONCLUSION Hence it can be concluded that the above mention 3 important essentials are required and are inter-related with each other and damages have always been essential characteristic which distinguishes tort form another civil injury.

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2. Discuss the Section 304-A of The Indian Penal Code, 1860 with special reference to Jacob Mathews case.
304A. Causing death by negligence. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The provisions of this section apply to cases where there is no intention to cause death, and no knowledge that the act done in all probability would cause death. The Supreme Court has clarified that the section 304-A of I.P.C. is applicable only when death is caused due to rash and negligent act of the accused, which is an essential element to attract said provision This section would have no applicability where the act is in its nature criminal. Only the act done negligently or rashly invokes the validity of this section and it cannot be applicable to result, which supervenes upon the act which could not have been anticipated. While discussing the scope of this section as a license to kill, one may conceive that the term rash classifies the various events and acts in road accidents, mishandling of hazardous materials or lethal weapons etc. while the term negligent can be associated with the acts of professionals like medical practitioners or pharmacists etc. But the different levels of judiciary have from time to time defined and premeditated the applicability of this section ensuring it doesnt create a defensive ground for people to commit homicide. This section deals with homicide by negligence and covers that class of offences, where death is caused neither intentionally nor with the knowledge that the act of the offender is likely to cause death, but because of the rash and negligent act of the offender. This clause limits itself to rash and negligent acts which cause death, but falls short of culpable homicide of either description. When any of the two elements, namely, intention or knowledge, is present this section has no application. Intentional shooting at a fleeing person and hitting

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someone else to death comes under the section 300 read with section 301 of the I.P.C. It is not a negligent act so as to come under section 304-A. This section applies to rash and negligence acts and does not apply to cases where death has been voluntarily caused. This makes it clear that there can be no circumstances when ones act can be read into this particular section in order to avail him the benefit of not being charged under section 299 to 302 of the I.P.C. Thus its clear that the facts which must be proven in order to invoke the applicability of this section are essentially three folds: (1) Death of a human being; (2) The accused caused the death; (3) The death was caused by the doing of a rash and negligent act, though it did not amount to culpable homicide. The rash or negligent act referred to in this section means the act which is the immediate cause of death, and not any act or omission, which can utmost be said to be a remote cause of death. If an act is intended to hurt and injure a specific person or object, the perpetrator of the act must be imputed with an intentional act done with consideration and cannot amount to a rash and negligent act. It is imperative to note that there is difference between rashness and negligence. A rash act is primarily an overhasty act. Negligence is a breach of duty caused by omission to do something, which a reasonable guided, by those considerations which ordinarily regulate the conduct of human affairs would do. At this point it is necessary to have a close perusal of the words of this section which it reads as rash or negligent act not amounting to culpable homicide. The very words of this section indicate that the intent of the legislature was to apply this provision to the acts where a homicide was not culpable, i.e. where there was no intention to kill. The requirement of section 304-A of I.P.C. is that; death of any person must have been caused by the accused doing any rash or negligent act. In other words, there must be proof that the 7|Page

rash and negligent act of the accused was the proximate cause of death. There must be a direct nexus between the death of a person and the rash or negligent act of the accused, a remote nexus is not enough. To impose criminal liability u/s 304-A of IPC it is necessary that the death should have been the direct result of the rash and negligent act of the accused, and that act must be proximate and efficient cause without the intervention of anothers negligence, and it must be a causacausans, and not causa sine quo non. To see the other side of the same coin in Satnam Singh v. State of Rajasthan it could not be proved that the truck driver deliberately crushed the man on the scooter, thus the conviction was made under section 304-A of I.P.C. Again in Murari v. State of M.P. it was critically observed that truck driver knew that the passengers were sitting on the slabs he was carrying. But still he drove negligently and despite the protest by passengers caused an accident, leading to the death of a woman and two children. While in KanaiyalalArjandas v. Tribhuvandas the prosecution was unable to prove that the accused was driving the vehicle. Another connotation regarding the applicability of this section is that if the driver of a motor vehicle does not blow the horn because of the prevailing traffic rules prohibit him in doing so, it can neither be said that he failed to exercise reasonable and proper care nor that the duty to blow horn was imperative upon him, so as to hold him guilty of negligence under this section. Further the Supreme Court has laid down that, to render a person liable for neglect of duty there must be such a degree of culpability as to amount to gross negligence on his part. It is not every little slip or mistake that will make a man so liable. So it can be observed that at times this section creates such conditions, whereby one can use it as a defensive and protective measure in order to escape from the clutches of culpable homicide amounting to murder. The very best and clear example of this section can be drawn from State of Karnataka v. Mohd. Ismail, where a 28 year old motor-cyclist pushed from behind an old man of 85 years who sustained head injuries and died on the spot, the death was held to be result of rash 8|Page

and negligent conduct. In another classic example the petitioner was convicted under the same section, where the petitioner constructed a water tank for the use of village people. The tank when filled with water collapsed killing seven villagers. The tank collapsed because the material used in the construction was of low quality. The question here is that can someone kill a person in the disguise of a rash or negligence act. The very best example which strikes everyones mind is that of automobile accidents. In this regard the investigation and the role of witnesses are of great importance. Coming to the question of whether there was any rash and negligence involved, the evidence of the RTO is relevant. InRathnashalvan v. State of Karnataka it was clearly stated that the accident did not occur on account of mechanical defects. The evidence of eye witnesses showed that the vehicle was being driven at a very high speed and that the road was quite wide and there was no traffic at the time of accident. The evidence of witnesses showed that the vehicle dashed against the tree and the branches of the tree fell on it. As per evidence though it was rainy season but there was no rain at the relevant point of time, thus the accused was held guilty under this section. The principle of res ispa loquitur is the only rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and the control of the alleged wrong-doer. In an another event the petitioner was himself driving the bus over the bridge when it fell into a canal thus it was concluded that in such a situation the doctrine of res ispa loquitur comes to play and the burden of proof shifts to the person in control of the motor vehicle to show that the accident did not happened on account of his negligence. He was unable to show that there was any other reason of the accident rather than his negligence.

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While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the most important consideration should be deterrence. A professional driver pedals the accelerator of an automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is one the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if an accident occurs, it need not necessarily result in the death of any human being; or even such death ensures that he might not be convicted of the offence and lastly that even if he is convicted he would be dealt with leniently by the Court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of human beings due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the court can play, particularly at the level of trail courts for lessening the high rate of motor-accidents due to callous driving of automobiles. Though it might be a difficult issue to determine that whether there was negligence on the part of the accused or the act was done intentionally and the degree of punishment the convict deserves. But very instance of driving without due care and attention is a crime and it can scarcely be a law that every such case would be manslaughter if the driving happened to cause death. But if a driver is not rash, he is not liable for the death of a person who suddenly comes before his vehicle. For instance in M. H. Lokre v. State of Maharastra, the appellant who was not driving rashly was not held guilty under this section for causing the death of the person who, while suddenly crossing the road, came under the wheels of his vehicle. However vigilant and slowly a man might be driving, he cannot avert an accident if a person suddenly crosses the road. While discussing the scope of a particular legislative text, one has to study the intent of the legislature behind the articulation of that section or article. The intent of the nineteenth century drafters of the section 304-A was not to create a license to kill but in the present 10 | P a g e

scenario due to lack of evidence and at times due to some magical advocacy one can avail illegitimate benefits of this section. But such a situation is very much nominal and is rarely found. It has been said that in cases falling under this section it is dangerous to attempt to distinguish between the approximate and ultimate cause of death. But there is a negligible chance that the judiciary will get confused between section 304-A and the sections 299 to 302 of the I.P.C. Thus it must be concluded that the said section doesnt endow a License to kill but is to protect the persons who had no intention to kill and due to an act of negligence did become guilty of a homicide.

Causing death by negligence.Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished withimprisonment of either description for a term which may extend to two years, or with fine, or with both.

Discussion on -Jacob Mathews Case

In a landmark judgment, the supreme court of India laid down guidelines in cases of alleged negligence against medical practitioners in India. It clearly stated that there is a need for protecting doctors from frivolous or unjust prosecution

In a landmark judgment of the Supreme Court of India the judgment stipulates the guidelines to be followed before launching a prosecution against a doctor for negligence. On February 15, 1995, the informant's father, was admitted as a patient in the private ward of a hospital. On February 22, 1995 at about 11 p.m., the patient felt difficulty in breathing. The complainant's elder brother, who was present in the room contacted the duty nurse, who in turn called a doctor to attend to the patient. No doctor turned up for 20-25 minutes. Then doctors came to the room of the patient. An oxygen cylinder was brought and connected to the mouth of the patient, but the breathing problem increased further. The patient tried to get up, but the medical staff asked him to remain in the bed. The oxygen cylinder was found to be empty. There was no other gas cylinder available in the room. Son of the patient went to the adjoining room and brought a gas cylinder. However, there was no arrangement to make the gas cylinder functional and meanwhile, 5-7 minutes were wasted. By this time, another doctor came and declared that the patient was dead. The complaint as per records reads as follows. The death of my father has occurred due to the carelessness of doctors and nurses and non- availability of oxygen
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cylinder and the empty cylinder was fixed on the mouth of my father and his breathing was totally stopped hence my father died. I sent the dead body of my father to my village for cremation and for information I have come to you. Suitable action be done. On the above said report, an offence under Sections 304-A and 34 of the Indian Penal Code was registered and investigated. It was submitted before the High Court that there was no specific allegation of any act of omission or commission against the accused persons in the entire plethora of documents comprising the challan papers filed by the police against them. The learned single Judge who heard the petition formed an opinion that the plea raised by the appellant was available to be urged in defense at the trial and therefore, a case for quashing the charge was not made out. Feeling aggrieved the appellant has filed these appeals by special leave before the Supreme Court.
Supreme court guide lines As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for 12 | P a g e

extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

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3.Discuss the Article 21 of the Constitution of India with reference to health care system in India. Ans. Supreme Court has brought the right to health under the preview of Article 21. The scope of this provision is very wide. It prescribes for the right of life and personal liberty. The concept of personal liberty comprehended many rights, related to indirectly to life or liberty of a person. And now a person can claim his right of health. Thus, the right to health, along with numerous other civil, political and economic rights, is afforded protection under the Indian Constitution. The early of 1970s, witnessed a watershed in human rights litigation with the keshwanandbhartiVs State of Kerala ushering in a unprecedented period of progressive jurisprudence following the recognition fundamental rights. At the same time standing rules were relaxed in order to promote PIL and access to justice. So there were two developments in 1980s, which led to a marked increase in health related litigation. First was the establishment of consumer courts that made it cheaper and speedier to sue doctors for medical negligence. Second, the growth of PIL and one of this offshoots being recognition of health care as a fundamental right. Through PIL the Supreme Court has allowed individual citizen to approach the court directly for the protection of their Constitutional human rights. The Constitution guarantees the some fundamental rights having a bearing on health care. Article 21deal with No person shall be deprived of his life or personal liberty except according to procedure established by law. Right to live means something more, than mere animal existence and includes the right to live consistently with human dignity and decency. In 1995, the Supreme Court held that right to health and medical care is a fundamental right covered by Article 21 since health is essential for making the life of workmen meaningful and purposeful and compatible with personal dignity. The state has an obligation under Article 21 to safeguard the right to life of every person, preservation of human life being of paramount importance. The Supreme Court has in the case of ParmanandKatravs Union of India, held that whether the patient be an innocent person or be a criminal liable to punishment under the law, it is

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the obligation of those who are in charge of the health of the community to preserve life so that innocent may be protected and the guilty may be punished. Article 23 is indirectly related to health. Article 23(1) prohibits traffic in human beings. It is well known that traffic in women leads to prostitution, which in turn is to major factor in spread of AIDS. Article 24 is relating to child labor it deal with No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Thus this article is of direct relevance to child health. In addition to constitutional remedies sensitizing of the relevant ordering law towards later health for all adds to the content of right to health. Legal prohibition of commercialized transplantation of human organ and effective application of consumer protection act to deal with deficient medical services have animated right to health. Judicial Response: with the recognition that both the Indian Constitution and the fundamental right of life emphasize human dignity, began to address the importance of health to Indian citizen. In the DPSP, Art.47 declares that the State shall regard the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. Since DPSP are not enforceable by the court, implementation of the guarantee has remained illusory. However, in a series of cases dealing with the substantive content of the right to life, the court has found that the right live with human dignity including right to good health. In Consumer Education and Research Center v. UOI, the Court explicitly held that the right to health was an integral factor of a meaningful right to life. The court held that the right to health and medical care is a fundamental right under Article 21. The Supreme Court, while examining the issue of the constitutional right to health care under arts 21, 41 and 47 of the Constitution of India in State of Punjab v Ram LubhayaBagga, observed that the right of one person correlates to a duty upon another, individual, employer, government or authority. Hence, the right of a citizen to live under art 21 casts and obligation on the state. This obligation is further reinforced under art 47; it is for the state to secure health to its citizens as its primary duty. No doubt the government is rendering this obligation by opening government hospitals and health centers, but to be meaningful, they must be within the reach of its people, and of sufficient liquid quality. Since it is one of the most sacrosanct and valuable rights of a citizen, and an equally sacrosanct and sacred obligation of the state, every citizen of this welfare state looks towards the state to perform this obligation with top priority, including by way of allocation
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of sufficient funds. This in turn will not only secure the rights of its citizens to their satisfaction, but will benefit the state in achieving its social, political and economic goals. Right to Health Care as a Fundamental Right: The Supreme Court, in PaschimBangaKhetmazdoorSamity&ors v. State of West Bengal &ors, while widening the scope of art 21 and the governments responsibility to provide medical aid to every person in the country, held that in a welfare state, the primary duty of the government is to secure the welfare of the people. Providing adequate medical facilities for the people is an obligation undertaken by the government in a welfare state. The government discharges this obligation by providing medical care to the persons seeking to avail of those facilities. Article 21 imposes an obligation on the state to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the state are duty bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment, results in violation of his right to life guaranteed under Article21. The Court made certain additional direction in respect of serious medical cases: a. Adequate facilities be provided at the public health centers where the patient can

be given basic treatment and his condition stabilized. b. Hospitals at the district and sub divisional level should be upgraded so that serious

cases be treated there. c. Facilities for given specialist treatment should be increased and having regard to

the growing needs, it must be made available at the district and sub divisional level hospitals. d. In order to ensure availability of bed in any emergency at State level hospitals,

there should be a centralized communication system so that the patient can be sent immediately to the hospital where bed is available in respect of the treatment, which is required. e. Proper arrangement of ambulance should be made for transport of a patient from

the public health center to the State hospital. f. Ambulance should be adequately provided with necessary equipments and

medical personnel. Professional obligation to Protect Life of Accident Victims: The Supreme Court in its land mark judgment in ParamanandKatara v Union of India ruled that every doctor whether at a
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Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or state action can intervene to avoid delay, the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute, and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained, and must, therefore, give way. The Court laid down the following guidelines for doctors, when an injured person approaches them: I. Duty of a doctor when an injured person approaches him: Whenever, on such

occasions, a man of the medical profession is approached by an injured person, and if he finds that whatever assistance he could give is not really sufficient to save the life of the person, but some better assistance is necessary, it is the duty of the man in the medical profession so approached to render all the help which he could, and also see that the person reaches the proper expert as early as possible. II. Legal protection to doctors treating injured persons: A doctor does not

contravene the law of the land by proceeding to treat an injured victim on his appearance before him, either by himself or with others. Zonal regulations and classifications cannot operate as fetters in the discharge of the obligation, even if the victim is sent elsewhere under local rules, and regardless of the involvement of police. The 1985 decision of the Standing Committee on Forensic Medicine is the effective guideline. III. No legal bar on doctors from attending to the injured persons: There is no

legal impediment for a medical professional, when he is called upon or requested to attend to an injured person needing his medical assistance immediately. The effort to save the person should be the top priority, not only of the medical professional, but even of the police or any other citizen who happens to be connected with the matter, or who happens to notice such an incident or a situation. Workers right to health care facilities: The Supreme Court has recognized the rights of the workers and their right to basic health facilities under the Constitution, as well as under the international conventions to which India is a party. In its path breaking judgment in BandhuaMuktiMorcha v Union of India, the court delineated the scope of art 21 of the
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Constitution, and held that it is the fundamental right of every one in this country, assured under the interpretation given to art 21 by this court in Francis Mullins Case to live with human dignity, free from exploitation. This right to live with human dignity enshrined in art 21 derives its life breath from the directive principles of state policy and particularly clause (e) and (f) of art 39 and arts 41 and 42. It must include protection of the health and strength of workers, men and women; and children of tender age against abuse; opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity; educational facilities; just and humane conditions of work and maternity relief. These are the minimum requirements, which must exist in order to enable a person to live with human dignity. No state, neither the central government nor any state government, has the right to take any action which will deprive a person of the enjoyment of these basic essentials.In CESE Ltd v Subhash Chandra Bose, the court held that, the health and strength of a worker is an integral facet of the right to life. The aim of fundamental rights is to create an egalitarian society to free all citizens from coercion or restrictions by society and to make liberty available for all. The court, while reiterating its stand for providing health facilities in Vincent v Union of India, held that a healthy body is the very foundation for all human activities. That is why the adage Sariramadyamkhalu dharma sadhanam. In a welfare state, therefore, it is the obligation of the state to ensure the creation and the sustaining of conditions congenial to good health. Guidelines For Holding Eye Care Camps:- In the case of A.S Mittal v State of Uttar Prsdesh public interest litigation brought under article 32 of the constitutions and the allied negligence on the part of the doctors in a free eye care camp at Khurja.However laudable the intentions with which it might it have been launched. The operated eyes of the patient were irreversibly damaged owing to post-operative infection. The mishap was due to some common contaminated source. After an inquiry it was found that it was due to normal saline used in the eyes at the time of the operation. The vision of 84 persons could not be restored. The court held that a mistake by a medical practitioner, which no reasonably competent and careful practitioner would have committed, is a negligent one. The court further held that the highest standard of aseptic and sterile should be maintained. The govt. spends so much on public health but standard of cleanliness and hygiene are to be desired. The victims were given a compensation of Rs 5000 as interim relief. The state govt. was directed to pay a sum of Rs. 12,500 to each of the victims.
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In a similar case Pushpaleela v. State of Karnataka a free eye camp was organized by lions club and some social service organizations on 28th and 29th January 1988. In this camp free eye treatment were given and 151 people were operated for cataract problem. Most people who got operated in this eye camp developed eye infection and severe eye pain. 72 of them lost the sight on one eye while 4 of them lost sight of both the eyes. Right to Health is a Fundamental Right: In CESC Ltd. vs. Subash Chandra Bose,the Supreme Court relied on international instruments and concluded that right to health is a fundamental right. It went further and observed that health is not merely absence of sickness: The term health implies more than an absence of sickness. Medical care and health facilities not only protect against sickness but also ensure stable manpower for economic development. Facilities of health and medical care generate devotion and dedication to give the workers best, physically as well as mentally, in productivity. It enables the worker to enjoy the fruit of his labour, to keep him physically fit and mentally alert for leading a successful economic, social and cultural life. The medical facilities are, therefore, part of social security and like gilt edged security, it would yield immediate return in the increased production or at any rate reduce absenteeism on grounds of sickness, etc. Environment Pollution is linked to Health and is violation of right to life with dignity: In T. Ramakrishna Rao vs. Hyderabad Development Authority, the Andhra Pradesh High Court observed: Protection of the environment is not only the duty of the citizens but also the obligation of the State and its all other organs including the Courts. The enjoyment of life and its attainment and fulfillment guaranteed by Article 21 of the Constitution embraces the protection and preservation of natures gift without which life cannot be enjoyed fruitfully. The slow poisoning of the atmosphere caused by the environmental pollution and spoliation should be regarded as amounting to violation of Article 21 of the Constitution of India. It is therefore, as held by this Court speaking through P.A, Choudary, J., in T. DamodarRao and others vs. Special Officer, Municipal Corporation of Hyderabad, the legitimate duty of the Courts as the enforcing organs of the constitutional objectives to forbid all actions of the State and the citizens from upsetting the ecological and environmental balance. In Virender Gaur vs. State of Haryana, the Supreme Court held that environmental, ecological, air and water pollution, etc., should be regarded as amounting to violation of right to health guaranteed by Article 21 of the Constitution. It is right to state that hygienic environment is an integral facet of the right to healthy life and it would not be possible to live with human
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dignity without a humane and healthy environment. In Consumer Education and Research Centre vs. Union of India, Kirloskar Brothers Ltd. vs. Employees State Insurance Corporation, the Supreme Court held that right to health and medical care is a fundamental fight under Article 21 read with Article 39(e), 41 and 43. In Subhash Kumar vs. State of Bihar, the Supreme Court held that right to pollution-free water and air is an enforceable fundamental right guaranteed under Article 21. Similarly in Shantistar Builders v. Narayan KhimalalTotame, the Supreme Court opined that the right to decent environment is covered by the right guaranteed under Article 21. Further, in M.C. Mehta vs. Union of India, Rural Litigation and Entitlement Kendra v. State of U.P.,Subhash Kumar vs. State of Bihar , the Supreme Court imposed a positive obligation upon the State to take steps for ensuring to the individual a better enjoyment of life and dignity and for elimination of water and air pollution. It is also relevant to notice as per the judgment of the Supreme Court in Vincent Panikurlangara vs. Union of India, Unnikrishnan, JP vs. State of A.P., the maintenance and improvement of public health is the duty of the State to fulfill its constitutional obligations cast on it under Article 21 of the Constitution

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4. Define free consent. What are its components? Give examples of your own choice. Ans. Consent: Defined as Two or more person are said to consent when they agree upon the same thing in the same sense. "Free consent" definition- 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 section 20,21, and 22. Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation, or mistake. Components of free consent (i) Coercion: Coercion means forcibly compelling somebody to enter into the contract. If a party forcibly compelling somebody to enter into the contract, law says the coercion has been exercised. Section-15 of the Indian Contract Act defines the coercion asCoercion is the committing or threatening to commit an y 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 agreement. If we threaten somebody to damage the property or if we threaten somebody forcibly or by threatening or we commit or we damage the property of somebody by that method, if we compel a person to enter into the contract that is known as coercion. So coercion say that we are threatening to damage the property of somebody or we damage the property of somebody or we are threatening the person physically then we say coercion has been exercised.

Elements of coercion: The first and the foremost element is the coercion must be committing any act forbidden by Indian Penal Code. Any act which is prohibited by Indian Penal Code, if we take help of that act and compel a person, or threaten a person by that act and he or she enters into the contract that is known as contract has been entered into by the coercion. A person must be threatening to commit any act, forbidden by Indian Penal Code.Then we say the coercion has been exercised. The second element in it is coercion must be unlawful detaining or threatening to detain any property of other party then coercion is set to be exercised. When one
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party is unlawful detaining the property or threatening to detain the property coercion is exercised. For example A forcibly kidnaps the son of the B and asks the B that he will kill the son of the B if B will not execute a promissory note of rupees one lakh in his favour. Now under this threatening B execute a promissory note of rupees one lakh in favour of the A. Then we can say now B has given this promissory note under coercion because A has threatened to B that he will damage or he will kill the son of the B if he will not give a promissory note of one lakh rupees. Coercion must be done with the intention of causing the other party to enter into the contract. This point itself explain that one party when it is exercising the coercion on the other party the intention is to enter into the contract, but we can analyze on this point that coercion has been exercised. We are threatening another party or we are committing an act but there is no intention that contract should be formulated out of it. Then it will be called that coercion was not exercised because after exercising the coercion a contract should emerge out of it. If contract is not emerging out of it by exercising the coercion then the aggrieved party will not have any sufficient ground to go in the court of law and to say that they enter into the contract on behalf of the coercion, because of the coercion because they dont have any proof to go into the court of law, therefore if one party is exercising the coercion that should lead to the emergence of the contract. The coercion may be initiated by any person. It is not necessary that offeror, if he gives an offer to the offeree, the coercion should be exercised by the offeror himself. Even coercion can be exercised by a stranger. If offeror appoint somebody on his behalf to exercise the coercion and compel the other party to enter into the contract that will be a valid ground for the aggrieved party to go in the court of law and to declare the contract either void or voidable. Meaning thereby, even a stranger can be involved, it is not necessary that party himself should be directly involved while exercising the coercion. Next point related to the coercion is the IPC Indian Penal Code may or may not be enforce where the coercion is exercised and the next important relevant rule is that in coercion, if we are giving a threatening to file a suit against the other party then it will not be called as coercion. For example A has given a loan to B and B promised to the A that he will return the loan within the three months. Now after the expiry of the three months B fails to return the loan and after repetitive requests B is not returning the loan of the A and A threatens to the B that he will go in the court of law to recover the loan. Now A in this case is threatening to the B to go in the court of law. This threatening will not be included in the coercion because it is a valid argument, it is a valid case and A is free t o go in the court of law. (ii) Undue influence: "Undue influence" is defined as: (1) A contract is said to be induced by "under influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

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(2) In particular and without prejudice to the generally of the foregoing principle, a person is deemed to be in a position to dominate the will of another. (a) where he hold a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. (3) 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 adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. Nothing in the sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872) First is that one party should be in a position to dominate the will of another party and after the position, the position should be used by the party and after using the position the party should have taken the undue advantage. So there are three things. You must have a dominating position to prove that undue influence was exercised on you. You must have used your dominating position to prove that undue influence was exercised and then you must have taken undue advantage out of it. In an undue influence one party by its superior position trying to dominate the will of another party. It is some time called as a mental coercion. There the pressure is of physical nature but in undue influence the relation between the parties are so that one party is in a superior position and other party is in a weaker position. So the superior party exercises, its superior and dominating position over the weaker party and weaker party changes its will against its desire and enters in to the contract that is known as the undue influence has been exercised. Example of doctor and patient relationship. Doctor is in a superior position. When a patient visits to the doctor he completely feels helpless or he is in a weaker position according to undue influence and whatever doctor says a patient has to obey the instructions. In spite that he is unwilling to follow or he is not willing to do what the doctor is saying but doctor is in a superior position, he is in a dominating position and if he uses that position and take some advantages out of it the important thing is he has taken the advantages out of it that is known as the doctor has exercised the undue influence over the patient. Now this is relationship sometime is known as the fiduciary relationship. Fiduciary relationship means the relationship which is based on trust. So in undue influence very prominent thing is the weaker partys mind is deviated that is why we call it mental coercion. Weaker partys mind is deviated by the dominating party and weaker party enters into the contract because an undue influence has been exercised by the stronger party.

(iii)

FRAUD Definition The term fraud includes all acts committed by a person with a view to deceive another person. To deceive means to induce a man to believe that a thing is true which is false.
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Section 17 of the Contract Act states that `Fraud means and includes _any -of the following acts : 1. False Statement: The suggestion as to a fact, of that which is not true by one who does not believe it to be true. A false statement intentionally made is fraud. 2: Active Concealment The active Concealment of a fact by one having knowledge or belief of the fact: Mere non-disclosure is not -fraud where the party is not under any duty to disclose all facts But active concealment is fraud. Examples : (i) B, having discovered a vein of ore on the estate of A, adopts means to conceal , and does conceal the existence o the ore from A. Through As ignorance B is enabled to buy the estate at an undervalue, the contract is void able at the option of-A.-(Illustration (b) to Sec 19). A sells by auction to B a horse which A knows to be unsound-A says nothing to .B about the horses unsoundness. This is not fraud because A s under no duty to disclose the fact to B. But if between B ,and A there is a fiduciary relationship (for example if B is As daughter) there arises the duty to disclose and nondisclosure amounts to fraud

(ii)

3.Intentional non-performance
A promise made without any intention of performing it. Example- purchase of goods without any intention paying for then . Deception Any other act. fitted to deceive. Fraudulent act or omission any such act or omission as the law, specially declares to be fraudulent. This clause to provisions in certain Acts which make it obligatory to disclose relevant facts. Thus, under Section 55 of Transfer of Property Act, the seller of immovable property is bound to disclose to the buyer all material defects. , Failure to do- so -amounts to fraud. To constitute fraud, the act complained of must be brought within any of the abovementioned categories. It is to be noted that commendation or praising of ones own goods is not . fraud. Traders and manufacturers are inclined to speak optimistically of their products. e.g. X products are the best in the market or a soap powder which washes whiter than white.Such statements do not amount to fraud unless` a clear intention to deceive is proved . Mere silence is not fraud
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Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to -speak, or unless his silence is, in itself equivalent to speech.From the above, the following rules can be deduced : 1.The general rule is that mere silence is not fraud. Examples : (i) A and B being traders enter upon a contract. A has private information of a change in price which would affect Bs willingness to proceed with the contract. A is not bound to inform B H sold to W some pigs which were to his knowledge suffering from svvine fever. The pigs were sold with all faults and H did not disclose the fever to W .held e, there was no fraud. Ward v. Hobbs.

(ii)

2. Silence is fraudulent, if the circumstances of the case are such that regard being had to them, it is the duty of the person, keeping silence to speak. The duty to speak, i.e. disclose all facts, exists where there is a fiduciary relationship between the parties (father and son ; guardian and ward, etc.)The duty to disclose may also be an obligation imposed by statute. Example- Sec-55 of the Transfer of property Act . There also a duty of making full disclosure in contract it of insurance . Whenever there is a duty to disclose, failure to do so amounts to fraud . 3. Silence is fraudulent where the circumstances are such that, silence is in itself equivalent to speech. Example :B says to A. If you do not deny it, I shall assume that the horse is sound A says nothing. Here As -silence is equivalent to speech. If then horse is unsound. As silence is fraudulent. Consequences of Fraud A party who has been induced to enter into an agreement by fraud has the following remedies open to him-sec 19. 1. He can avoid the performance of the contract. 2.He can insist that the contract shall be performed and that he shall be put in the position in which he would have been if the representation made had-been true. Example: A fraudulently informs B that As estate is free from encumbrance. B thereupon buys the estate. The estate is subject to a mortgage B may avoid the contract or may insist on its being carried out and the mortgage debt repaid by A.
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3.The aggrieved party can sue for damages. Fraud is a civil wrong or tort ; hence compensation is payable. Conditions Relief for fraud can be obtained only if the following conditions are satisfied . 1. The act must have been committed by a party to a contract or with is connivance or by his agent. 2. The act must have been done with the intention to deceive and must actually deceive. A deceit which does not deceive gives no ground o action. 3. The consent of the party was obtained by the act complained of a fraudulent act which did not cause the consent to a contract to the party on whom such fraud was practiced, does not make the contract voidable. 4. In cases of fraudulent silence, the contract is not voidable if the party whose consent was so caused had the means of discovering the truth by ordinary diligence. 5. The remedy of rescinding the agreement is not available in cases of approbation (i.e., acceptance of the agreement) and aches or undue delay in taking action. DISTINCTION BETWEEN FRAUD AND MISREPRESENTATION 1. Different Intention : In misrepresentation there is no intention to deceive. Fraud implies an intention to deceive. 2.Different Belief : The difference between misrepresentation and fraud depends on the belief of the person making the statement. If the statement is honest, even though it was wrong, there is only misrepresentation. If the statement is dishonest it is a case of fraud. 3.Different Rights: In case of fraud the party aggrieved can rescind the contract (the contract is voidable at his. option). He an also sue for damages. In case of misrepresentation the only remedy is rescission. There can be no suit for damages~ 4.Different Defence: In case of misrepresentation if the circumstances were such that the aggrieved party might have discovered the truth with ordinary diligence, the contract cannot be avoided. The same is the case where there is fraudulent silence. But in other cases fraud this is no defence .Even if there were independent sources of discovering the truth which were not availed , of the aggrieved party can rescind the contract an /or file a suit or damages. CONRACTS UBERRIMAE FIDEI Definition
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Uberrimae fidei contracts are contracts where law imposes upon the parties the duty of making a full disclosure of all material facts .In such contracts; if one of the parties has any information concerning the subject matter of the transaction which is likely to affect the willingness of the other party to enter into the transaction, he is_ -bound to disclose the information. Examples The following contracts come within the class-of Uberrimae fidei contracts. 1.contracts of insurance : The assured must disclose to the insurer all material facts concerning the risk to be undertaken. upon failure to do so, the contract may be avoided. London assurance Co. v. Mansel 2.Fiduciary relationship, : Contracts in which parties stand in a fiduciary relation to each other, e.g., contractsbetween solicitor and client, father and son, etc. 3.Contracts for the Sale of Immovable Property : Under Section55(1)(a) of the Transfer of Property Act, the seller is bound to disclose to the buyer any material defect in the propertyor in the sellers title thereto of Whichtheseller is, and-the buyer not aware, and which the buyer could not with ordinary care discover. 4. Allotment of shares of companies : Persons who issue the prospectus of a company have the duty of disclosing all information regarding the company with strict accuracy. 5. Family Settlements :When family disputes art settled by mutual agreement, each party is bound to disc: information possessed by him regarding the value of family properties. (iv). MISTAKE Definition Mistake may be defined as a erroneous belief concerning -something. consent cannot be said to be free when an agreement is entered into under a mistake. An agreement is valid as a contract only when the parties agree upon the same thing in the same sense. Classification Mistakes may be (i)Mistake of law and (ii)Mistake of fact. Mistake of law may again be

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(a) mistake as to a law in force in India and (b) mistake as to a law not in force in India. Mistake may be(i) Bilateral- or (ii)Unilateral. Bilateral mistakes arise where both the parties of the contract make mistakes e.g. regarding, the existence of the things or the nature of the transaction. Unilateral mistake arises from one of the parties of the contract. As a rule unilateral mistake does not make one avoid an agreement. But there are cases where such agreement can be avoided. Rules The Indian Contract Act lays down the following rules regarding mistakes 1. Mistake of Law Mistake on a point of Indian law does not affect the contract. Mistake on a point of law in force in a foreign country is to treated as mistake of fact. Example A and B make a contract grounded on the erroneous belief that a particular debt is barred by the, Indian law of limitation. This is a valid contract. The reason is that every man is presumed to know the law of his own country and if, he does not he must suffer the consequences of such lack of knowledge. But if in the above case, the mistake is related to the law of a limitation of a foreign country, the agreement could have been avoided .-Sec. 21. 2. Mistake of fact An agreement induced by a mistake of fact is void provided the following conditions are fulfilled.-Sec. 20. (i) Both the parties of the agreement are mistaken.
(ii)

The mistake is as to a fact , essential to the agreement.

Examples

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(i) P agreed to sell to Q a specific cargo supposed to be on its way from England to Bombay. it turns out that before the day of the bargain the ship conveying the cargo has been cast away and the goods lost neither party was aware of the fact The agreement is void. (ii) M agrees to buy from N a certain horse. It turns out that the horse , was dead at the time of the bargain though neither party was aware of the fact. The agreement is void. (iii) A, being entitled to an estate for the- life of B, agrees to sell it td C. B was dead at the time of the agreement, but, both parties were ignorant of the fact. The agreement is void. (iv) W offer to purchase certain plots of land belonging to C for Rs. 20 lacs. C rejected the offer. Later on C wrote a letter offering -to sell the plots to W for Rs. 22 lacs. His real intention was to make an offer for Rs. 20 lacs. W accepted the offer as made. W was not entitled to enforce the contract, as he knew that the offer was made by-C-under mistake. 3.Opinion An erroneous opinion as to the value of the thing which forms the subject -matter of the agreement is not to be deemed a mistake as to a matter of fact.-Explanation to Sec. 20. Examples X buys an article thinking that it is worth Rs. 100 while it is actually worth Rs. 50 the agreement cannot be avoided on the ground of 4. Unilateral Mistake Section 22 provides that, A contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to matter of fact. A mistake by one of the parties (Unilateral Mistake) does not generally affect the validity of a contract. Example : H contracted with the N Corporation to build a number of houses. In calculating the cost of the houses H by mistake deducted a particular sum twice over and submitted his estimates accordingly. The Corporation agreed to the figures which were naturally lower than actual cost.The agreement was binding as it stood when the Corporation;affixed its seal to it, even though it was based upon erroneous estimates. But if the mistake is of such a nature as to . prevent the : existence of free consent, the agreement is void, even though the mistake is unilateral. (See below) Mistake and Consent :Section 10 of the Act provides that an agreement is valid if it is the result of the free consent of the parties. Section 13 of the Act lays down that two or more persons are said to consent when they agree upon the same thing in the same sense. A mistake may prevent the formation of a real agreement upon the same thing in the same sense. When one or more of the parties to an agreement suffer from a fundamental error. and consent (apparently given) is not really there, the agreement t void.

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A fundamental error, which precludes consent, is sometimes the result of fraud. But fraudis not the necessary or decisive element. An error may arise without the fault of any of the parties to the agreement. Whenever any fundamental error exists, the agreement is void. Examples of Mistake Some typical cases of mistake invalidating an agreement are given below. ,

(a) Mistakes as to identity of the person contracted with, where such identity is essential to the contract. Examples : (i)Blenkarn, by imitating the signature of reputable firm called Blenkarn & Co., induced another firm Y to supply goods to him on credit. The goods were then sold to X Held, there was no contract between Blenkarn and X because Y, never intended to supply Blenkam. Therefore .X obtained no title to the goods. Because, the goods were given no credit the question of identity was essential to the agreement. Cundy v. Lindsay. (ii)A jeweller was insured with a company against loss by theft, with the exception of jewellery entrusted to a customer: A woman, posing as the wife of a wealthy customer, made a few purchases from the jeweller to inspire confidence, and then was allowed to take away two pearl necklaces of high value on approval for her supposed husband. She made away with the necklaces. The judge held that the loss was covered by the insurance. Lake v. .Simmons. The question of identity must be an essential clement of the contract. Where the identity of the party contracted with is. immaterial, mistakes as to identity will not avoid a contract. Thus if X goes to a shop, introduces himself as Y and purchase some goods for cash, the contract valid unless, it can be shown that the shopkeeper would not have sold the goods to X had he knew that he was not Y. (b)Mutual mistakes as to the existence of a thing : All the examples given in the Contract Act under Section 20 come within this category. They have been reproduced above. c) Mutual mistake about the identity or quantity of a thing. Examples (i) X agreed to buy from Y 125 bales of. Surat cotton to arrive ex Peerless from Bombay. There were two ships called Peerless sailing from Bombay, one arriving in October and the other arriving in November. X meant the earlier one and Y the latter. Held there was no contract. Raffles v. Wichelhaus. In this case there was no consensus ad idem : the parties did not understand the same thing in the same sense. (ii) X inspected 50 rifles in a shop. Latter he telegraphed, send three rifles. The telegraph, clerk by mistake transcribed the message as, send the rifles. The shopkeeper sent 50 rifles and upon Xs refusal, to accept, filed a suit for damages. The court held, there was no
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contract. Here the consensus ad idem did not arise because of the mistake of a third party. Henke! v. Pope. (d) Mutual mistake as to the subject-matter of the contract, or the nature of the transaction -: If the contract actually made is substantially different from the contract the parties intended to make, the contract can be avoided. Examples (i) An old man of feeble sight, endorsed a bill of exchange thinking it was a guarantee. There was no negligence on his part. Hence, there was no contract. (ii) A and B believing themselves married made a separation agreement under which the husband agreed to pay a week y allowance to the wife. Later on it transpired that they were not married. In an action by the wife for arrears of allowance, it was held that the agreement was void because there was a mutual mistake on a point of fact which was material to the existence of the agreement. (e) Miscellaneous : Mistakes may occur for the following causes : the title of property ; quality of the subject matter ; quantity of the goods ; and, the price of the subject

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5. A) What is capacity to contract? Ans. Introduction: An agreement grows into a contract only when it is enforceable by law. One of

the essential conditions for the enforceability of an agreement is the concern parties must be competent to enter into an agreement. The section 10 of Indian Contract Act specifically requires that the parties must be competent to contract, thus an agreement is valid and enforceable only if the parties are competent to contract.
The term capacity to contract is defined in the section 11 of Indian Contract Act 1872. Every person is competent to contract who is of the age of the majority according to the law to which he is subject and who is a sound mind and is not disqualified from contracting by any law to which he is subject. Definition of minor: The definition of the minor which is given in the section 3 of the Indian Majority Act 1875, A minor is a person who has not completed 18 years of the age. There are two more provisions related to the minor. Where a Guardian of a minors person or property has been appointed under the guardian and ward act 1890 and where the superintendent of minors property is assumed by a court of wards. Then a person becomes major on completing the age of 21 years. This section has been incorporated to protect the interest of the minor. Even a person who is of 17 years old and 364 days old, he will be called as a minor in the eyes of law. Minors interest is watched by the law. Law presumes that minors mind is not mature enough to understand what is right, what is wrong, what is fair, what is unfair, what is true, what is false? So in a way by debarring or by disqualifying a person who is a minor to enter into the contract, it is in the interest of the minor. Nature of minors agreement: In 1903, Privy Council in its major decisions has declared that contract entered into by the minor is void ab initio. Before 1903, it was not clear that contract enter into by the minor is void or voidable. There was confusion but a landmark judgement 1903 in a very prominent case known as Mori Bibi VS Dharma Das Ghose. In this case the Privy Council in 1903 declared that if a minor enters into the contract, that contract is a void ab initio. The meaning of the ab initio is that it is void from the very

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beginning. Non existing from the very beginning, whomsoever will enter into the contract with the minor, that particular agreement cannot be enforceable in the eyes of law. A minor can enter into the contract for his benefits. When we say that minor can enter into the contract for his benefits meaning thereby if anything which is in the interest of the minor, that particular contract a minor can enforce. He can sue the other party to get the benefit for his welfare or for his wellbeing, but we should not lose a site of very prominent thing which is mentioned in the law and that is that if a minor enters into a agreement with anybody, then he is not personally answerable, he can sue the other party to get the benefit for his own advantage. The other party cannot file a suit on the minor, then if the other party file a suit on the minor, then the minor will not be personally answerable, minors property will be answerable to pay the debt. But suppose if the minor has no property then the other party cannot take anything from the minor. The minor can enter into the contract for his own benefits, again if someone has fulfilled the basic necessaries of the minor, then in that case also minors property will be responsible.As per the law ultimately minor has to fulfil his basic necessaries and for that he is not personally answerable, his property will be answerable. Ratification of the minors agreement / acts done on minors behalf: A minor cannot ratify an agreement when he becomes major. Any agreement done by the minor during the stage of his minority that is void ab initio. When a minor becomes a major, then he cannot ratify that agreement which was void ab initio from the very beginning. An agreement which was void ab initio cannot be ratified at the stage of becoming a major. So therefore, if a minor wants enter into the contract, he has to enter into a fresh contract. If however, a person has received a part of the benefit during minority and a part after attaining majority, a promise made on attaining majority, to pay for both, is enforceable. No estoppel against a minor The law of estoppel is that if you make a false statement today and mislead another person, you cannot deny the statement tomorrow, when the question of liability is there. It has been held in various cases that this law does not apply against a mino. Even if, while making the contract, he misrepresented his age, he can still plead that at the time of making the contract, he was a minor. Return of benefit secured by a fraudulent minor

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It has been held that a minor, who gets benefit under a contract, is not bound to pay compensations under sections 64 and 65, Indian Contract Act, as agreement by a minor is void ab initio, and these provisions do not cover agreements, which are void ab initio. Minors Liability for necessaries Minor can enter into the contract for his basic necessaries, but law says that basic necessaries of the minor will be determined according to the standard of the society in which he is living, if a minor is living in affluent society, than the basic necessaries will be judge according to that parameter. But any person who is fulfilling the basic necessaries of the minor should see that minor is not already having the basic necessaries with him. For example, if a minor wants a one bag of the grain and he goes to a shopkeeper to get one bag of the grain but minor is already having hundred bags of the grain in his godown, then the shopkeeper who is giving a bag to the minor of the grain will not be able to get the money from the property of the minor because minor was already having the hundred bags of the grain. It is the duty of the another party to look into the facts that basic necessaries of the minors are really unfulfilled. Therefore the other party if they find that minor is having a sufficient quantity of the basic necessaries and in spite of that the other party supply the basic necessaries to the minor, the other party cannot get the money from the minor for the fulfilment of the basic necessities. There are some judicial decisions which have given a list that these things will be included from the basic necessaries. 1. The fund supplies to the minor for the marriage of a female minor in the family are held necessaries and the money lender may get himself reimburse from the property of a minor. 2. Expenses incurred for performing fuller ceremonies of the father of a minor are held necessaries. 3. The cost incurred for defending the minor in criminal cases against him can be recovered from minors property. 4. The money advance to say minors property from sale in execution is necessary use. 5. Certain services render to minor have been held to be necessaries that is education, training for trade, Medical care, legal advice etc. So these are the basic necessaries if any person is supplying these necessaries to the minor, he can get back the money from the property of the minor.

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Position of a person of Unsound Mind For the validity of a contract, the parties to it should be of sound mind, otherwise the same is void. A person is said to be of sound mind if he is capable of understanding it and forming a rational judgement as to its effect upon his interests. Soundness of mind is needed at the time of making the contract only. If a person is usually of unsound mind but occassionally of sound mind, he may make a contract when he is of sound mind. Thus, a patient in a lunatic asylum may make a valid contract during lucid intervals, i.e., such intervals when he is of sound mind. Similarly, a person who is usually of sound mind, but occassionally of unsound mind, he may not make a contract when he is of sound mind. Thus, a sane man, who is delirious from fever or who is so drunk that he cannot understand the terms of contract or form a rational judgement as to its effect on his interests, cannot contract whilst such delirium, or drunkenness lasts. B) Define Void Agreements Ans.

Definition: A void agreement may be defined as: Literally: Void means having no legal value and agreement means Arrangement, promise or contract made with somebody. So void agreement means an agreement that has no legal value. Traditionally: An agreement not enforceable by law is said to be void. *Sec 2(g)+ A void agreement has no legal effect. An agreement which does not satisfy the essential elements of contract is void. Void contract confers no rights on any person and creates no obligation. There are some agreements which are specifically declared void by the Indian Contract Act. These are: (1) Agreement by a Minor Or a Person of Unsound MindA person who has not completed his or her 18 years of age signifies as minor. Law acts as the guardian of minors and protects their rights, because their mental facilities are not mature- they do not possess the capacity of judge what is good and what is bad for them. Accordingly, where is a minor charged with obligations and the other contracting party
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seeks to enforce those obligations against the minor, the agreement is deemed as void.

A person who does not possess a sound mind or whose mental powers are not arranged or whose mental condition is not under his or her own control. Any agreement by person of unsound mind is absolutely void because he has no capacity to judge, what is good and what is bad for him. (2) Agreement Made Without ConsiderationAn agreement made without consideration is void, unless 1) it is expressed in writing and registered under the law for the time being enforce for the registration of(documents), and is made on account of natural love and affection between parties standing in a near relation to each other; or unless. 2) It is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promissory was legally compellable to do, or unless. 3) It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in the behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.

In any of these cases, such an agreement is a contract. Illustrations a) A promises for no consideration, to give to B Rs. 1000; this is a void agreement. b) A, for natural, love and affection, promises to give his son, B Rs. 1000. A puts his promise to B into writing and registers it. This is a contract. (3) Agreements in Restraint of MarriageEvery individual enjoys the freedom to marry and so according to section 26 of the contract act every agreement is restraint of the marriage of any person, other than a minor, is void. The restraint may be general or partial but the agreement is void, and therefore, an agreement agreeing not to marry at all, or a certain person or, a class of persons, or for a fixed period, is void. However, an agreement restraint of the marriage of a minor is valid under the section.

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It is interesting to note that a promise to marry a particular person does not imply any restraint of marriage and is, therefore, a valid contract.

Illustrations (a) A agrees with B for good consideration that she will not marry C. It is a void agreement. (b) A agrees with B that she will marry him only; it is a valid contract of marriage (4) Agreement in Restraint of TradeThe constitution of India guarantees that the freedom of trade and commerce to every citizen and therefore section 27 declares every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. Thus no person is at livery to deprive himself of the fruit of his labor, skill or talent, by any contracts that he enters into. It is to be noted that whether restraint is responsible or not, if it is in the nature of restraint of trade, the agreement is void always, subject to certain exceptions provided for statutorily. Illustration An agreement to sell all produce to a certain party, with stipulation that the purchaser was bound to accept the whole quantity, was held valid because it aimed to promote business did not restrained it (Mackengie vs. Striramiah). But where in a similar agreement the purchaser was free to reject the goods (i.e. was not bound to accept the whole quantity tendered) it was held that the agreement was void as being in restraint of trade (Sheikh Kalu vs. Ram Saran) (5) Agreement in restraint of legal proceedingsEvery agreement, by which any party thereto is restricted absolutely from enforcing his right under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent. Section 28 declares the following two kinds of agreements void: (a) An agreement by which a party is restrained absolutely from taking usual legal Proceeding, in respect of any rights arising from a contract. (b) An agreement which limits the time within which one may enforce his contract Rights, without to the time allowed by the limitation act. Illustration In a contract of fire insurance, it was provided that if a claim is rejected and a suit is not filed within three months after such rejection, all benefits under the policy shell be forfeited. The provision was held valid and binding and the suit filed after three months was dismissed. (Baroda spinning Ltd. vs. Satyanarayan Marine and Fire Ins. Com. Ltd.) Exception 1: This section shell not render illegal a contract by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of
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subjects shell be referred to arbitration and that only the amount awarded in such arbitration shell be recoverable in respect of the dispute so referred. Exception 2: Nor shell this section render illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration. (6) Uncertain AgreementsAgreements, the meaning of which is not certain, or capable of being made certain, are void (Sec-29). Through Sec-29 the law aims to ensure that the parties to a contract should be aware of the precise nature and scope of their mutual rights and obligation under the contract. Thus, if the word used by the parties are or indefinite, the law cannot enforce the agreement. Illustration (a) A agrees to sell to B a hundred tons of oil. There is nothing whatever to show what kind of oil was intended. The agreement is void for uncertainty. (b) A who is dealer in coconut oil only, agrees to sell to B a hundred tons if oil. The nature of As trade affords an indication of the meaning of the words, and A has entered into a contract for the sale of one hundred toms of coconut oil. (c) A agrees to sell to B one thousand mounds of rice at a price to be fixed by C. As the price is capable of being made certain, there is no uncertainty here to make the agreement void. (d) A agrees to sell to his white house for rupees five hundred or rupees one thousand. There is nothing to show which of the price was to be given. The agreement is void. Further, an agreement to enter into an agreement in future is void for uncertainty unless all the terms of the proposed agreement are agreed expressly or implicitly. Thus, an agreement to engage a servant some time next year, at a salary to be mutually agreed upon is a void agreement. (7) Wagering AgreementLiterally the word wager means a bet something stated to be lost or won on the result of a doubtful issue, and, therefore, wagering agreements are nothing but ordinary betting agreements. Thus where A and B mutually agree that if it rains today A will pay B Tk.100 and if it does not rain B will pay A Tk.100 or C and D entered into agreement that on tossing up a coin, if it fall head upwards C will pay D Tk.50 and if falls tail upwards D will pay C Tk.50, there is a wagering agreement. In Tracker vs. Hardy Cotton, L.J., described a wager ad follows: The essence of gaming and wagering is that one party is to win and the other to lose upon a future event which at the time of the contract is of an uncertain nature- that is to say, if the event turns out the other way he will win. Agreement by way of wager, void. Section 30 lays down that agreements by way of wager are void; and no suit shell be brought for recovering anything alleged to be won on any
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wager, or entrusted to any person to abide the result of any game or other uncertain event on which any wager is made, Thus, where A and B enter into an agreement which provides that if Englands cricket team wins the match, A will pay B Rs. 100, and if it loses B will pay Rs. 100 to A, nothing can be recovered by the winning party under the agreement, it being a wager. Similarly, whether C and D enter into a wagering agreement and each deposits Rs.100 with Z instructing him to pay or give the total sum to the winner, no suit can be brought by the winner for recovering the bet amount from Z, the stake-holder. Further, if Z had paid the sum to the winner, the looser cannot bring a suit, for recovering his Rs.100, either against the winner or against, the stake-holder, even if Z had paid after the losers definite instructions not to pay. Of course the looser can recover back his deposit if he makes the demand before the stake-holder had paid it over to the winner (Ratnakalli vs. Vochalapu). But even such a deposit cannot be recovered by a loser in the States of Maharashtra and Gujarat where such an agreement is void and illegal. (8) Agreement Contingent on Impossible EventsContingent agreements to do or not to do anything if an im possible event happens are void, whether the impossibility of the event is know on not to the parties to thr agreement at the time when it is made. (Sec. 36) Illustration (a) A agrees to pay B Rs.1000 (as a loan) if two straight line should enclosed a space. The agreement is void. (b) A agrees to pay B Rs.1000 (as a loan) if B will marry As daughter, C. C was dead at the time of the agreement, the agreement is void. (9) Agreements to do Impossible ActAn agreement to do an act impossible in itself is void. (Sec, 56 Part-1) Illustration (a) A agrees with B to discover treasure by magic. The agreement is void. [Section 56]. (b) A agrees with B to run with a speed of 100 Kilometer per hour. The agreement is void.

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