Master of Business Administration Semester III MB0051- Legal Aspects Of Business Assignment Set- 11. What are the sources of law? Explain.Answer: Sources of LawThe main sources of modern Indian Law, as administered by Indian courts, may be divided intotwo broad categories: (i) Primary sources and (ii) Secondary sources.Primary sources of lawThe primary sources of Indian law are:(a) Customs,(b) Judicial precedents (stare decision),(c) Statutes and(d) Personal law.Customary law:Customs have played an important role in making the law and therefore are also known ascustomary law. „Customary Law‟, in the words of Keeton, may be defined as “those rules ofhuman action, established by usage and regarded as legally binding by those to whom the rulesare applicable, which are adopted by the courts and applied as sources of law because they aregenerally followed by the political society as a whole or by some part of it”. In simple words, “itis the uniformity of conduct of all persons under like circumstances”. It is a generally observedcourse of conduct by people on a particular matter. When a particular course of conduct isfollowed again and again, it becomes a custom.Judicial precedents are an important source of law:
Judicial precedents are another important source of law. It is based on the principle that a rule oflaw which has been settled by a series of decisions generally should be binding on the court andshould be followed in similar cases. These rules of law are known as judicial precedents.However, only such decisions which lay down some new rules or principles are treated asjudicial precedents. Thus, were there is a settled rule of law, it is the duty of the judges to followthe same; they cannot substitute their opinions for the established rule of law. This is known asthe doctrine of „staredecisis‟. The literal meaning of this phrase is “stand by the decision”.„Statute‟ – an important source of law:The statutes or the statutory law or the legislation is the main source of law. This law is createdby legislation such as Parliament. In India, the Constitution empowers the Parliament and statelegislatures to promulgate law for the guidance or conduct of persons to whom the statute is,expressly or by implication, made applicable. It is sometimes called „enacted law‟ as it is broughtinto existence by getting Acts passed by the legislative body. It is called Statute Law because it isthe writ of the state and is in written form (jus scriptum).Personal law:Many times, a point of issue between the parties to a dispute is not covered by any statute orcustom. In such cases, the courts are required to applythe personal law of the parties. Thus in certain matters, we follow the personal laws of Hindus,Mohammedan and Christians.Secondary sources of Indian law:The secondary sources of Indian Law are English Law and Justice, Equity and Good Conscience.English lawThe chief sources of English Law are:(i) The Common Law(ii) Equity(iii) The law Merchant and(iv) The statute Law.Nowadays, English law is not very important source of Indian law. The English law, in itsapplication to India, has to conform to the peculiar circumstances and conditions prevailing inthis country. Even though the bulk of our law is based on and follows the English law, yet in itsapplication our courts have to be selective. It is only when the courts do not find a provision on a
particular problem in the primary sources of Indian Law that it my look to subsidiary sourcessuch as the English Law. For example, the greater part of the Law Merchant has been codified inIndia. The Indian Contract Act, 1872, the Indian Partnership Act, 1932, the Scale of Goods Act1930 and the Negotiable Instruments Act, 1882, are some of the very important Acts relating tobusiness transactions. Where, however, there is some doubt as to the interpretation of anyprovisions of these Acts or where certain branches of the Law Merchant have not been codified,the courts in India look to English decisions on the point, for guidance.Justice, equity and good conscienceIn India we do not have, no did we ever had separate courts (as in England) administering„equity‟. But the equitable principles of law, i.e., justice, equity and good conscience, are theguiding force behind most of the statutes in our country and the decisions of the courts.Especially, where law is silent on any point or there is some lacuna in a statute, the principles ofequity come handy to the judges who exercise their discretion often on equitable considerations.The frequent use of terms such as ‟good faith‟, „public interest‟, „public policy‟, in statutes andby the judges in their judgements is based on principles of equity.Now we shall briefly describe the main sources of English law:1. Common law. This source consists of all those unwritten legal doctrines embodying customsand traditions developed over centuries by the English courts. Thus, the common law is found inthe collected cases of the various courts of law and is sometimes known as „case law‟.2. Equity. The literal meaning of the term „equity‟ is „natural justice‟. The development of equityas a source of law occurred due to rigours and hardships of the Common Law. Therefore, in itstechnical and narrower sense, „equity‟ means a body of legal doctrines and rules emanating fromthe administrations of justice, developed to enlarge, supplement or override a narrow rigidsystem of existing law of the land. However, like the common law, the „equity‟ is unwritten andis a supplement to common law as a source of law.3. Statute law. The Statute law consists of the law passed by the Parliament and therefore, is„written‟ law. The authority of parliament is supreme but is subject to natural limitations andthose laid down by the Constitution. It can pass any law it pleases and can override its ownprevious Acts and the decisions of the courts. Statute law, therefore, is superior to and canoverride any rule of Common Law or equity.4. The law merchant or lex mercatoria. It is another important source of law and is based to agreat extent on customs and usages prevalent among merchants and traders of the middle ages.Its evolution like that of equity can be traced to unsuitability of Common Law so far as thecommercial transactions were concerned. The Common Law was found to be unsatisfactory indealing with disputes between merchants. The merchants, therefore, developed certain rulesbased upon customs and usages to govern their mercantile transactions. These rules were knownas Lex Mercatoria or the Law Merchant.2. What is meant by contract? Explain about “quasi contracts”
Answer: Contract A contract is an agreement, enforceable by law, made between at least two parties by whichrights are acquired by one and obligations are created on the part of another. If the party, whichhad agreed to do something, fails to do that, then the other party has a remedy.Example: D Airlines sells a ticket on 1 January to X for the journey from Mumbai to Bangalore on 10January. The Airlines is under an obligation to take X from Mumbai to Bangalore on 10 January.In case the Airlines fails to fulfill its promise, X has a remedy against it. Thus, X has a rightagainst the Airlines to be taken from Mumbai to Bangalore on 10 January. A corresponding dutyis imposed on the Airlines. As there is a breach of promise by the promisor (the Airlines), theother party to the contract (i.e., X) has a legal remedy.Meaning of quasi contracts: „Quasi Contracts‟ are so-called because the obligations associatedwith such transactions could neither be referred as tortuous nor contractual, but are stillrecognized as enforceable like contracts, in courts. According to Dr Jenks, quasi contract is “asituation in which law imposes upon one person, on grounds of natural justice, an obligationsimilar to that which arises from a true contract, although no contract, express or implied, hasinfact been entered into by them”. Cases which are treated as quasi contractsFollowing are the cases which are to be deemed quasi contracts:1. Claim for necessaries supplied to a person incapable of contracting or on his account.If a person, incapable of entering into a contract or anyone whom he is legally bound to supportis supplied by another person with necessaries suited to his condition in life, the person whofurnished such supplies is entitled to be reimbursed from the property of such incapable person(Sec.68).
2.Reimbursement to a person paying money due by another in payment of which he isinterested.A person who is interested in the payment of money which another is bound by law to pay, andwho, therefore, pays it, is entitled to be reimbursed by the other. (Sec.69).
3. What are the rights of consumer under consumer protection act?Answer: Rights of ConsumersFor the first time in the history of consumer legislation in India, the Consumer Protection Act,1986 extended a statutory recognition to the rights ofconsumers.Sec.6 of the Act recognizes the following six rights of consumers:1. Right to safety, i.e., the right to be protected against the marketing of goods and serviceswhich are hazardous to life and property.2. Right to be informed, i.e., the right to be informed about the quality, quantity, potency, purity,standard and price of goods or services, as thecase may be, so as to protect the consumer againstunfair trade practices.3. Right to choose: It means right to be assured, wherever possible, access to a variety of goodsand services at competitive prices. In case ofmonopolies, say, railways, telephones, etc., it means right to be assured of satisfactory qualityand service at a fair price.4. Right to be heard, i.e., the consumers‟ interests will receive due consideration at appropriateforums. It also includes right to be represented invarious forums formed to consider theconsumers‟ welfare.5. Right to seek redressal: It means the right to seek redressal against unfair practices orrestrictive trade practices or unscrupulous exploitation ofconsumers. It also includes right to fairsettlement of the genuine grievances of the consumers.6. Right to consumer education: It means the right to acquire the knowledge and skill to be aninformed consumer.
4. Explain the purpose and meaning of contract of guarantee.Answer: Purpose of guarantee The contracts of guarantee are among the most common business contracts and are usedfor a number of purposes.These are:i) The guarantee is generally made use of to secure loans. Thus, a contract of guarantee is for thesecurity of the creditor.ii) The contracts of guarantee are sometimes called performance bonds. For example, in the caseof a construction project, the builder may have to find a surety to stand behind his promise toperform the construction contract. Also employers often demand a type of performance bondknown as a fidelity bond from employees who handle cash, etc., for the good conduct of thelatter. If an employee misappropriates then the surety will have to reimburse the employer.iii) Bail bonds, used in criminal law, are a form of contract of guarantee. A bail bond is a devicewhich ensures, that a criminal defendant will appear for trial. In this way a prisoner is releasedon bail pending his trial. If the prisoner does not appear in the court as desired then the bond isforfeited.Meaning of contract of guarantee:A contract of guarantee is defined as “a contract to perform the promise, or discharge theliability, of a third person in case of his default”. The person who gives the guarantee is called„surety‟; the person for whom the guarantee is given is called the „principal debtor‟, and theperson to whom the guarantee is given is called the „creditor‟. A contract of guarantee may beeither oral or in writing.
5. What is partnership? Explain the nature of partnership under „law of partnership‟.Answer: Meaning and Nature of PartnershipA partnership is defined as “the relationship between persons who have agreed to share profits ofa business carried on by all, or by any of themacting for all”.On analysis of the definition, certain essential elements of partnership emerge. These elementsmust be present so as to form apartnership and are discussed below:1. Partnership is an association of two or more than two persons.There must be at least two persons who should join together to constitute apartnership, becauseone person cannot become a partner with himself. These persons must be natural persons havinglegal capacity to contract.Thus, a company (which is an artificial person) cannot be a partner. Similarly, a partnership firmcannot be a partner of another partnership firm. Asregards maximum number of partners in apartnership firm, Sec.11 of the Companies Act, 1956, puts the limit at 10 in case of bankingbusiness and20 in case of any other business.2. Partnership must be the result of an agreement between two or more persons.An agreement presupposes a minimum number of two persons. As mentioned above, apartnership to arise, at least two persons must make anagreement. Partnership is the result of anagreement between two or more persons (who are known as partners after the partnership comesintoexistence).3. The agreement must be to carry on some business.The term „business‟ includes every trade, occupation or profession [Sec.2 (b)]. Though theword„business‟ generally conveys the idea of numerous transactions, a person may become a partnerwith another even in a particular adventure orundertaking (Sec.8). Unless the person joins for thepurpose of carrying on a business, it will not amount to partnership.
4. The agreement must be to share profits of the business.The joint carrying on of a business alone is not enough; there must be an agreement toshareprofits arising from the business. Unless otherwise so agreed, sharing of profits also involvessharing of losses. But whereas the sharing ofprofits is an essential element of partnership, sharingof losses is not.Example:A trader owed money to several creditors. He agreed to pay his creditors out of the profits of hisbusiness (run under the creditors‟supervision) what he owed to them. Held, the arrangement didnot make creditors partners with A in business [Cox v. Hickman, (1860) 8 H.L.C.,
6. Write a note on the following on Copy Right Act.Answer: Meaning of copyright (Sec.14)The term „copyright‟ means the exclusive right, by virtue of, and subject to the provision ofthe Act:(a)in the case of literary, dramatic or musical work, not being a computer programme – (i) toreproduce the work in any material form including thestoring of it in any medium by electronicmeans; (ii) to issue copies of the work to the public not being copies already in circulation; (iii)to performthe work in public, or communicate it to the public; (iv) to make any cinematographfilm or sound recording in respect of the work;(v) to make any translation of the work; (vi) tomake any adaptation of the work; (vii) to do, in relation to a translation or an adaptation of thework,any of the acts specified in relation to the work in (i) to (vi);(b) in the case of computer programme – (i) to do any of the acts specified in clause (a) above;(ii) to sell or give on hire, or offer for sale or hire anycopy of the computer programme,regardless of whether such copy has been sold or given on hire on earlier occasions;(c) in the case of an artistic work – (i) to reproduce the work in any material form includingdepiction in three dimensions of a two – dimensionalwork or in two dimensions of a three –dimensional work; (ii) to communicate the work to the public; (iii) to issue copies of the work tothe publicnot being copies already in circulation; (iv) to include the work in any cinematographfilm; (v) to make any adaptation of the work; (vi) to do inrelation to an adaptation of the workany of the acts specified in relation to the work in (i) to (iv) above;(d) in the case of a cinematograph film – (i) to make a copy of the film, including a photographof any image forming part thereof; (ii) to sell or giveon hire; or offer for sale or hire, any copy ofthe film, regardless of whether such copy has been sold or given on hire on earlier occasions; (iii)tocommunicate the film to the public.(e) In the case of a sound recording – (i) to make any other sound recording embodying it; (ii) tosell or give on hire, or offer for sale or hire, anycopy of the sound recording regardless ofwhether such copy has been sold or given on hire on earlier occasions; (iii) to communicate thesoundrecording to the public.
Ownership of copyright (Sec.17)The author of the work is recognised to be the first owner of the copyright therein. This ishowever, subject to some exceptions given below:1. In the case of a literary, dramatic or artistic work made by the author in the course of hisemployment or apprenticeship under the proprietor of a newspaper, magazine or similarperiodical, for the purpose of publication, the said proprietor shall be the first owner of thecopyright in the work (in the absence of any agreement to the contrary) insofar as the copyrightrelates to the publication in the newspaper, magazine or other periodical. Except in such cases,the author will be the first owner of the copyright in the work.2. If the photograph is taken or a painting or portrait is drawn or an engraving or cinematographfilm is made on payment at the instance of anyperson, such person, in the absence of anyagreement to the contrary, shall be the first owner of the copyright therein.3. If a work is made in the course of the author‟s employment under a contract of service orapprenticeship, the employer (not being the proprietorof a newspaper, magazine or periodical) inthe absence of any agreement to the contrary, the employer shall be the first owner of thecopyrighttherein.4. If any person has delivered any address or speech in public, then he shall be the first owner ofthe copyright. However, if the address or speech isdelivered on behalf of any other person, thensuch other person shall be the owner of the copyright therein.5. In the case of government work, the government is the owner of the copyright in the absenceof any agreement to the contrary.6. In the case of a work made or first published by or under the direction or control of any publicundertaking, such public undertaking shall, in theabsence of any agreement to the contrary, bethe first owner of the copyright therein.Term of copyrightSec.22 provides that copyright shall subsist in any literary, dramatic, musical or artistic work(other than a photograph) published within the lifetimeof the author until 60 years from thebeginning of the calendar year next following the year in which the author dies. Sec.23 providesfor the term ofcopyright in anonymous and pseudonymous works. In the case of a literary,dramatic, musical or artistic work (other than a photograph), which ispublished anonymously orpseudonymously, copyright shall subsist until 60 years from the beginning of the calendar yearnext following the yearin which the work is first published.
Sec.24 provides for term of copyright in posthumous works. Where copyright subsists at the dateof death of the author and adaptation of which hasnot been published before that date, thecopyright will subsist until 60 years of from the beginning of the calendar year next followingthe year inwhich the work is first published.Licenses Licence by owners of copyright Compulsory licence in works withheld from public Compulsory Licence in unpublished Indian works (Sec.31A) Licence to produce and publish translation (Sec.32)Copyright SocietiesRegistration of a copyright society (Sec.33)No person or association of persons shall commence or carry on business of issuing or grantinglicences in respect of any work in which copyright subsists or in respect of any other rightsconferred by this Act except under or in accordance with the registration granted by the CentralGovernment.The Central Government may, having regard to the interests of the authors and other owners ofrights under this Act, the interest and convenienceof the public and in particular of the groups ofpersons who are most likely to seek licences in respect of the relevant rights and the ability andprofessional competence of the applicant, register such association of persons as a copyrightsociety subject to such conditions as may beprescribed.However, the Central Government shall not ordinarily register more than one copyright societyto do business in respect of the same class of works.The Central Government may, if it is satisfied that a copyright society is being managed in amanner detrimental to the interests of the owners ofrights concerned, cancel the registration ofsuch society after such inquiry as may be prescribed.Further, if the Central Government is of the opinion that in the interests of the owners of rightsconcerned, it is necessary so to do, it may suspendthe registration of such society pendingenquiry for such period not exceeding one year. In such a situation, the Government shallappoint anadministrator to discharge the functions of the copyright society.Administration of rights of owner by copyright society (Sec.34).A copyright society may acceptfrom an owner of rights exclusive authorisation toadminister any right in any work. But he shallhave the right to withdraw such authorization without prejudice to the rights of the copyrightsocietyunder the contract.
Payment of remuneration by copyrights society (Sec.4A). The copyright society is empoweredto frame a scheme for determining the quantum ofremuneration payable to individual copyrightowners having regard to the number of copies of the work in circulation.Control over the copyright society by the owner of rights (Sec.35). Every copyright society shallbe subject to the collective control of the ownersof rights under this Act whose rights itadministers. The society shall (a) obtain the approval of such owners of rights for its proceduresof collectionand distribution of fees; (b) obtain their approval for the utilisation of any amountscollected as fees for any purpose other than distribution to theowner of rights; and (c) provide tosuch owners regular, full and detailed information concerning all its activities in relation to theadministrator oftheir rights.International CopyrightSec.40 authorises the Central Government to extend copyright protection to foreign works.Accordingly the Central Government made theInternational copyright order, 1991.Sec.41 provides that works made or published by certain International Organisations are grantedcopyright protection in India. Accordingly, theCentral Government passed the copyright(International Organisations) Order (1958) under which copyright protection was granted tocertainInternational Organisations.Infringement of CopyrightSec.51 provides that copyright in a work shall be deemed to be infringed in the following cases:(a) when any person without a licence from the owner or the Registrar of copyrights doesanything, the exclusive right to do which is by this Act conferred upon the owner of copyright, orpermits for profit, any place to be used for the communication of the work to the public, unlesshe was not aware and had no reasonable ground for believing that such communication would bean infringement of copyright; or(b) when any person: (i) makes for sale or hire or sells or lets for hire or by way of trade displaysor offers for sale or hire any infringing copies ofthe work covered by copyright; or (ii)distributes, either for the purpose of trade or to such an extent as to affect prejudicially the ownerof the work;(iii) exhibits in public by way of trade any infringing copies of the work; or (iv)imports into India any infringing copies of the work except thecopy of any work for the privateand domestic use of the importer.The reproduction of a literary, dramatic, musical or artistic work in the form of a cinematographfilm shall be deemed to be infringing copyright.Certain acts not to be infringement of copyright. (Sec.52). This section specifies acts which donot constitute an infringement of copyright.(a) A fair dealing with a literary, dramatic, musical or artistic work, not being a computerprogram, for the purposes of
(i) private use, includingresearch; (ii) criticism or review, whether of that work or of any otherwork.(b) The making of copies or adaptation of a computer programme by the lawful possessor of acopy of such computer programme, from such copy(i) in order to utilise the computerprogramme for the purpose for which it was supplied; or (ii) to make back-up copies purely as atemporaryprotection against loss, destruction or damage in order only to utilise the computerprogramme for the purpose for which it was supplied.(c) A fair dealing with a literary, dramatic, musical or artistic work for the purpose of reportingcurrent events – (i) in a newspaper, magazine orsimilar periodical, or (ii) by broadcast or in acinematograph film or by means of photographs.(d) The reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicialproceeding or for the purpose of a report of ajudicial proceeding.(e) The reproduction or publication of literary, dramatic, musical or artistic work in any workprepared by the Secretariat of a Legislatureexclusively for the use of its members.(f) The reproduction of any literary, dramatic or musical work in a certified copy made orsupplied in accordance with any law for the time being inforce.(g) The reading or recitation in public of any reasonable extract from a published literary ordramatic work.(h) The publication in a collection, mainly composed of non-copyright matter bonafide intendedfor the use of educational institutions and sodescribed in the title and in any advertisement issuedby or on behalf of the publisher, of short passages from published literary or dramatic works.(i)The reproduction of a literary, dramatic, musical or artistic work (i) by a teacher or a pupil inthe course of instruction; or (ii) as part of the questions to be answered in an examination; or (iii)in answer to such questions.(j) The performance, in the course of the activities of educational institution of a literary,dramatic or musical work by the staff and students of theinstitution, or of a cinematograph filmor a sound recording, if the audience is limited to such staff and students, the parents andguardians of thestudents and persons directly connected with activities of the institution or thecommunication to such an audience of a cinematograph film or soundrecording.(k) The making of sound recordings in respect of any literary, dramatic or musical work, if (i)sound recording of that work have been made by orwith the licence or consent of the owner ofthe right in the work; (ii) the person making the sound recordings has given a notice of hisintention tomake the sound recordings, has provided copies of all covers or labels with which thesound recordings are to be sold, and has paid in the prescribedmanner to owner of rights inthe work, royalties in respect of all such sound recordings to be made by him, at the rate fixed bythe Copyright Boardin this behalf.
(l) The causing of a recording to be heard in public by utilising it, (i) in an enclosed room or hallmeant for the common use of residents inresidential premises (not being a hotel or similarcommercial establishment) as part of the amenities provided exclusively or mainly for residents,therein; or (ii) as part of the activities of a club or similar organisation which is not established orconducted for profit.(m) The performance of a literary, dramatic or musical work by an amateur club or society, if theperformance is given to a non-paying audience orfor the benefit of a religious institution;(n) The reproduction in a newspaper, magazine or other periodical of an article on currenteconomic, political, social or religious topics, unless theauthor of such article has expresslyreserved to himself the right of such reproduction.(o) The publication in a newspaper, magazine or other periodical of a report of a lecturedelivered in public.(p) The making of not more than three copies of a book (including a pamphlet, sheet of music,map, chart or plan) by or under the direction of theperson in charge of a public literary for theuse of the library if such book is not available for sale in India.(q) The reproduction for the purpose of research or private study or with a view to publication, ofan unpublished literary, dramatic or musical workkept in a library, museum or other institution towhich the public access.(r) The reproduction or publication of (i) any matter which has been published in any OfficialGazette except an Act of a Legislature; (ii) any Act ofa Legislature subject to the condition thatsuch Act is reproduced or published together with any commentary thereon or any other originalmatter;(iii) the report of any committee, commission, council, board or other like body appointedby the Government if such report has been laid on theTable of Legislature, unless thereproduction or publication of such report is prohibited by the Government; (iv) any judgment ororder of a court,tribunal or other judicial authority, unless the reproduction or publication of suchjudgment or order is prohibited by the court, the tribunal or otherjudicial authority, as the casemay be.(s) The production or publication of a translation in any Indian language of an Act of aLegislature and of any rules or orders made there under(i) if no translation of such Act or rules ororders in that language has previously been produced or published by the Government; or(ii) Where a translation of such Acts or rules or orders in that language has been produced orpublished by the government if the translation is notavailable for sale to the public.(t) The making or publishing of a painting, drawing, engraving or photograph of a work ofarchitecture or photograph of a work of architecture orthe display of a work of architecture.
(u) The making or publishing of a painting, drawing, engraving or photograph of a sculpture, orother artistic work falling under Sec.2(e) (iii), ifsuch work is permanently situated in a publicplace or any premises to which the public has access.(v) The inclusion in a cinematograph film of – (i) any artistic work permanently situated in apublic place or any premises to which the public hasaccess; or (ii) any other artistic work, if suchinclusion is only by way of background or is otherwise incidental to the principal mattersrepresentedin the film.(w) The use by the author of an artistic work where the author of such work in not the owner ofthe copyright therein, of any mould, cast, sketch,plan, model or study made by him for thepurpose of the work.(x) The reconstruction of a building or structure in accordance with the architectural drawings orplans by reference to which the building orstructure was originally constructed.(y) In relation to literary, dramatic or musical work recorded or reproduced in any cinematographfilm, the exhibition of such film after theexpiration of the term of copyright therein.(z) The making of an ephemeral recording, by a broadcasting organisation using its own facilitiesfor its own broadcast by a broadcastingorganisation of a work which it has the right to broadcast,and the retention of such recording for archival purposes on the ground of itsexceptionaldocumentary character.(za) The performance of a literary, dramatic or musical work or the communication to the publicof such work or of a sound recording in the courseof any bona fide religious ceremony or anofficial ceremony held by the Central Government or the State Government or any localauthority.Sec.52A requires certain particulars to be included in sound recording and video films. Noperson can publish a sound recording in respect of anywork unless the following particulars aredisplayed on the sound recording and on any container thereof; (a) the name and address of thepersonwho has made the sound recording; (b) the name and address of the owner of thecopyright in such work; (c) the year of its publication.In the case of a video film in respect of any work, the following particulars are to be displayed inthe video film, when exhibited. Also, it isnecessary that on the video cassette or other containerthereof the following particulars are shown:(a) If such work is a cinematograph film required to be certified for exhibition under theprovisions of the Cinematograph Act, 1952, a copy of thecertificate granted by the Board of FilmCertification;(b) The name and address of the person who has made the video film and a declaration by himthat he has obtained the necessary licence or consentfrom the owner of the copyright in suchwork for making such video film; and(c) The name and address of the owner of the copyright in such work.
Set– 21. Explain different modes of discharge of contracts.Answer: Different Modes of Discharge of Contracts (Secs.73-75)A contract may be discharged by:(i) Performance,(ii) Tender;(iii) Mutual consent;(iv) Subsequent impossibility;(v) Operation of law;(vi) Breach.Discharge of contracts by performance or tender:The obvious mode of discharge of a contract is by performances that is where the parties havedone whatever was contemplated under the contract; the contract comes to an end. Thus, where acontracts to sell his car to B for Rs 1, 85, 000, as soon as the car is delivered to B and B pays theagreed price for it, the contract comes to an end by performance. The tender or offer ofperformance has the same effect as performance. If a promisor tenders performance of hispromise but the other party refuses to accept, the promisor stands discharged of his obligations.Mutual consent (Sec.62):If the parties to a contract agree to substitute a new contract for it, or to rescind it or alter it, theoriginal contract is discharged. A contract may terminate by mutual consent in any of the sixways viz. novation, rescission, alteration and remission, waiver and merger. Novation meanssubstitution of a new contract for the original one.
Discharge of contracts by impossibility of performance:A contract may be discharged because of impossibility of performance. There are two types ofimpossibility: (i) Impossibility may be inherent in the transaction (i.e., the contract), (ii)Impossibility may emerge later by the change of certain circumstances material to the contract.Discharge of a contract by operation of law:Discharge by operation of law may take place in four ways: (i) By death. Death of the promisorresults in termination of the contract in cases involving personal skill or ability. (ii) Byinsolvency. The insolvency law provides for discharge of contracts under certain circumstancesso where an order of discharge is passed by an insolvency court the insolvent stands dischargedof all debts incurred previous to his adjudication. (iii) Bymerger.Discharge of contracts by breach:A breach of contract is one party‟s failure, without a legal excuse, to live up to any of itspromises under a contract. A contract terminates by breach of contract. If the promisor has notperformed his promise in accordance with the terms of the contract or where the performance isnot excused by tender, mutual consent or impossibility or operation of law, then this amounts toa breach of contract on the part of the promisor. The consequenceof this is that the promisee becomes entitled to certain remedies. The breach of contract mayarise in two ways: i) anticipatory and (ii) actual.Anticipatory breach of contracts:The anticipatory breach of contract occurs when a party repudiates it before the time fixed forperformance has arrived or when a party by his own act disables himself from performing thecontract.Actual breach of contracts:The actual breach can occur by (i) failure to perform as promised, (ii) making it impossible forthe other party to perform. The failure to perform means that one party must not have performeda material part of the contract by a stated deadline. The actual breach by failure to perform maytake place (a) at the time when performance is due, or (b) during the performance of the contract.Thus, if a person does not perform his part of the contract at the stipulated time, he will be liablefor its breach.
2. Distinguish between a contract of guarantee and a contract of indemnityAnswer: A contract of guarantee and a contract of indemnityGuarantees and indemnities are both long established forms of what the law terms surety ship.There are important legal distinctions between them. Append below some salient pointspertaining to the difference/distinction between Indemnity and Guarantee:Contracts of Indemnity:A contract of indemnity is any agreement whereby one party agrees to indemnify, or pay, theother party for certain types of loss. Depending on the contract, those losses could be caused bythe party promising to pay or by any other individual. The most common type of contracts ofindemnity are insurance contracts. For instance, in an automobile insurance contract, theinsurance company promises to indemnify (or pay) the insured for any losses he suffers as aresult of automobile accidents.Contracts of Guarantee:In a contract of guarantee, or contract of guaranty, one party agrees to act on behalf of anothershould that second party default. In plain terms, this means that if an individual fails to pay herguaranteed debt or to perform some other duty or obligation, the guarantor -- the party who hasagreed to act on behalf of another -- will step in to pay or perform the obligation. Commoncontracts of guarantee include a loan with a co-signer and a student loan, where the governmentguarantees payment if the student should default.1. Section 124 of the Indian Contract Act 1872 defines a "contract of indemnity" as a contract bywhich one party promises to save the other from loss caused to him by the conduct of thePromisor himself, or by the conduct of any other person.Example: = x contracts to indemnify y against the consequences of any legal proceedingswhich may take against B in respect of a certain sum of Rs.200/=, Where as Section 126 of theIndian Contract Act 1872 defines a contract of guarantee is a contract to perform the promise ordischarge the liability of a third person in case of his default”. The person who gives the
guarantee is called the “surety”; the person in respect of whose default the guarantee is given iscalled the “principal debtor”, and the person to whom the guarantee is given is called the“creditor”. A guarantee may be either oral or written. e.g., P lends Rs. 5000/= to Q and Rpromises to P that if Q does not pay the money back then R will do so.2. Indemnity comprise only two parties- the indemnifier and the indemnity holder, There arethree parties in guarantee namely the surety, principal debtor and the creditor.3. Liability of the indemnifier is Primary; in guarantee the liability of the surety is secondary.The surety is liable only if the principal debtor makes a default. The primary liability being thatof the principal debtor.4. The indemnifier need not necessarily act at the request of the indemnified. In guarantee thesurety give guarantee only at the request of the principal debtor.5. The possibility of any loss happening is the only contingency against which the indemnifierundertakes to indemnify. Whereas there is an existing debt or duty, the performance of which isguarantee by the surety.6. An indemnity is for reimbursement of a loss, a guarantee is for security of the creditor.7. In a contract of indemnity the liability of the indemnifier is primary and arises when thecontingent event occurs, In case of contract of guarantee the liability of surety is secondary andarises when the principal debtor defaults.8. The indemnifier after performing his part of the promise has no rights against the third partyand he can sue the third party only if there is an assignment in his favor, Whereas in a contract ofguarantee, the surety steps into the shoes of the creditor on discharge of his liability, and may suethe principal debtor.9. In a contract of indemnity, the indemnifier promises without the request of debtor, Contract ofGuarantee is for security of a debt or performance of promise.
3) Briefly state special features of a partnership on the basis of which its existence can bedetermined under the Indian Partnership Act?Answer: PartnershipA partnership is defined as “the relationship between persons who have agreed to share profits ofa business carried on by all, or by any of them acting for all”. On analysis of the definition,certain essential elements of partnership emerge.Features of a partnership:1. Partnership is an association of two or more than two persons.There must be at least two persons who should join together to constitute a partnership, becauseone person cannot become a partner with himself. These persons must be natural persons havinglegal capacity to contract. Thus, a company (which is an artificial person) cannot be a partner.Similarly, a partnership firm cannot be a partner of another partnership firm. As regardsmaximum number of partners in a partnership firm, Sec.11 of the Companies Act, 1956, puts thelimit at 10 in case of banking business and 20 in case of any other business.2. Partnership must be the result of an agreement between two or more persons.An agreement presupposes a minimum number of two persons. As mentioned above, apartnership to arise, at least two persons must make an agreement. Partnership is the result of anagreement between two or more persons (who are known as partners after the partnership comesinto existence).3. The agreement must be to carry on some business.The term „business‟ includes every trade, occupation or profession [Sec.2 (b)]. Though the word„business‟ generally conveys the idea of numerous transactions, a person may become a partnerwith another even in a particular adventure or undertaking (Sec.8). Unless the person joins forthe purpose of carrying on a business, it will not amount to partnership.
4. The agreement must be to share profits of the business.The joint carrying on of a business alone is not enough; there must be an agreement to shareprofits arising from the business. Unless otherwise so agreed, sharing of profits also involvessharing of losses. But whereas the sharing of profits is an essential element of partnership,sharing of losses is not.Example:A trader owed money to several creditors. He agreed to pay his creditors out of the profits of hisbusiness (run under the creditors‟ supervision) what he owed to them. Held, the arrangement didnot make creditors partners with A in business [Cox v. Hickman, (1860) 8 H.L.C., 268].
4) Distinguish between condition and warranty. State the circumstance under which acondition can be waived and treated as a warranty.Answer:In a contract of sale, parties make certain stipulations, i.e., agree to certain terms. All stipulationscannot be treated on the same footing. Some may be intended by the parties to be of afundamental nature, e.g., quality of the goods to be supplied, the breach of which, therefore, will beregarded as a breach of the contract. Some may be intended by the parties to be binding, but of asubsidiary or inferior character, e.g., time of payment, so that a breach of these terms will not put anend to the contract but will make the party committing the breach liable to damages. The formerstipulations are called ‘conditions’ and the latter ‘warranties’.Difference between conditions and warrantyCondition: A condition is a stipulation which is essential to the main purpose of the contract, thebreach of which gives rise to a right to treat the contract as repudiated [Sec. 12(2)].Thus, a condition is regarded as the very basis or foundation of the contract. If there is a breachof a condition, the contract will fail and it will entitle the aggrieved party to put an end to thecontract.Example: B asked a car dealer to suggest him a suitable car for touring purposes. The dealersuggested to buy a "Buggatti" car. B accordingly purchased the car but found it unfit for thepurpose. Held, the suitability of the car for touring purposes was so important that its non-fulfdment defeated the very purpose. Hence B could return the car and get back the price [Baldryv. Marshal.Warranty: A warranty is a stipulation collateral to the main purpose of the contract. The breachof which gives rise to a claim for damages but not a right to reject the goods and treat thecontract as repudiated [Sec. 12(3)].A warranty is not regarded as the very basis of a contract or its foundation. Hence a breach ofwarranty does not give the aggrieved party, a right to reject the goods and repudiate the contract.The party will have to accept the goods but can claim damages for breach of warranty.It should be noted that whether a stipulation in a contract of sale is a condition or a warrantydepends in each case on the construction of the contract. A stipulation may be a condition,though called a warranty in the contract and vice-versa [Sec. 12(4)].
Breach of condition to be treated as breach of warranty (Sec.13). Under certain circumstances abreach of condition is to be treated as a breach of warranty, i.e., the right to repudiate the contractis deemed to have been lost. These circumstances are:i) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer mayeither (a) waive the condition, or (b) elect to treat the breach of the condition as a breach ofwarranty. In such situations, the buyer is active and is either waiving the condition or electing totreat the breach of condition as a breach of warranty. If the buyer decides to waive the condition,he cannot later on insist that the condition be fulfilled. Where the buyer treats the breach ofcondition as a breach of warranty, he has to give a notice to the seller to that effect.ii) There is also a compulsory treatment of breach of condition as a breach of warranty. Wherethe contract of sale is not severable and the buyer has accepted the goods or part thereof, thebreach of any condition to be fulfilled by the seller can only be treated as a breach of warranty.However, the agreement may provide otherwise, i.e. may permit repudiation of the contract inspite of the acceptance of the goods by the buyer.Express and implied conditions and warranties. Conditions and warranties may be eitherexpress or implied. They are said to the „express‟ when the terms of the contract expressly,provide for them. They are said to be „implied‟ when the law deems their existence in thecontract even without their actually having been put in the contract. However, an impliedcondition or warranty may be negative by an express term to the contrary. Sec.62 recognizes thefollowing two principles: (i) what is expressed makes what is implied to cease and (ii) customand agreement overrule law.Express condition or warranty. These may be of any kind that the parties may choose to agreeupon, e.g., it may be agreed that delivery of goods shall be made or taken on or before a certaindate. Similarly, in a contract of sale of a car, express warranty as to its soundness may beincorporated.Implied conditions and warranties [Secs.14-17]. Implied conditions and warranties are deemedto be incorporated by law in every contract of sale of goods unless the terms of the contract showa contrary intention. The implied conditions: (i) condition as to title (Sec.14), (ii) sale bydescription (Sec.15), (iii) condition as to quality or fitness for buyer‟s purpose (Sec.16(1)), (iv)condition as to merchantable quality [Sec.16(2)], (v) condition as to wholesomeness, (vi) impliedcondition in the case of sale by sample (Sec.17), (vii) implied condition in the case of sale bysample as well as description (Sec.15).Doctrine of caveat emptorThe doctrine of caveat emptor is a fundamental principle of the law of sale of goods. It means„CAUTION BUYER‟, i.e., „let the buyer beware‟. In other words, it is no part of the seller‟s dutyto point out defects of his own goods. The buyer must inspect the goods to find out if they willsuit his purpose.
5) What is meant by Memorandum of Association? Explain in brief.Answer: Meaning and purposeThe Memorandum of Association of a company is its charter which contains the fundamentalconditions upon which alone the company can be incorporated. It tells us the objects of thecompany‟s formation and the utmost possible scope of its operations beyond which its actionscannot go. Thus, it defines as well as confines the powers of the company. If anything is donebeyond these powers, that will be ultra vires (beyond powers of) the company and so void.The memorandum serves a two-fold purpose. It enables shareholders, creditors and all those whodeal with the company to know what its powers are and what is the range of its activities. Thus,the intending shareholder can find out the field in, or the purpose for which his money is going tobe used by the company and what risk he is taking in making the investment. Also, any onedealing with the company, say, a supplier of goods or money, will know whether the transactionhe intends to make with the company is within the objects of the company and not ultra virus itsobjects.Form and contentsSec.14 requires that the memorandum of a company shall be in such one of the Forms in TablesB, C, D and E in Schedule I to the Act, as may be applicable in the case of the company, or inForms as near thereto as circumstances admit. Sec.15 requires the memorandum to be printed,divided into paragraphs, numbered consecutively and signed by at least seven persons (two in thecase of a private company) in the presence of at least one witness, who will attest the signature.Each of the members must take at least one share and write opposite his name the number ofshares he takes. Sec.13 requires the memorandum of a limited company to contain: (i) the name of the company, with „limited‟ as the last word of the name in the case of a publiccompany and „private limited‟ as the last words in the case of a private company; (ii) the name ofthe State, in which the registered officer of the company is to be situated; (iii) the objects of thecompany, stating separately „Main objects‟ and „other objects‟; (iv) the declaration that theliability of the members is limited; and (v) the amount of the authorised share capital, dividedinto shares of fixed amounts.These contents of the memorandum are called compulsory clauses and are explained below:The name clause.The promoters are free to choose any suitable name for the company provided:(a)the last word in the name of the company, if limited by shares or guarantee is „limited‟ unlessthe company is registered under Sec.25 as an „association not for profit‟ [Sec.13(1) (a) &Sec.25].
(b) In the opinion of the Central Government, the name chosen is not undesirable [Sec.20 (1)].Too similar name.In case of too similar names, the resemblance between the two names must be such as to becalculated to deceive. A name shall be said to be calculated to deceive where it suggests someconnection or association with the existing company.Publication of name (Sec.147).Every company shall: (a) paint or affix its name and the address of its registered office and keepthe same painted or affixed, on the outside of every office or place of business in a conspicuousposition in letters easily legible and in the language in general use in the locality.Alteration of memorandumSec.16 provides that the company cannot alter the conditions contained in memorandum exceptin the cases and in the mode and to the extent express provision has been made in the Act. Theseprovisions are explained herein below:Change of name. Sec.21 provides that the name of a company may be changed at any time bypassing a special resolution at a general meeting of the company and with the written approval ofthe Central Government. However, no approval of the Central Government is necessary if thechange of the name involves only the addition or deletion of the word „private‟ (i.e., when publiccompany is converted into a private company or vice versa).The change of name must be communicated to the Registrar of Companies within 30 days of thechange. The Registrar shall then enter the new name on the register in the place of the old nameand shall issue a fresh certificate of incorporation with necessary alterations [Sec.23 (1)]. Thechange of name becomes effective on the issue of fresh certificate of incorporation.Change of registered office.The procedure depends on whether the change is within the jurisdiction of same registrar ofcompanies (Sec.146) or whether the shifting is to the jurisdiction of another registrar ofcompanies in the same state (Sec.146 and Sec.17A). This may include:(a)Change of registered office from one premises to another premises in the same city, town orvillage.The company may do so anytime. A resolution passed by the Board of directors shall besufficient. However, notice of the change should, within 30 days after the date of the change, begiven to the Registrar who shall record the same (Sec.146).
(b) Change of registered office from one town or city or village to another town or city orvillage in the same State (Sec.146).In this case, the procedure is:(i) A special resolution is required to be passed at a general meeting of the shareholders;(ii) A copy of it is to be filed with the Registrar within 30 days.(iii) Within 30 days of the removal of the registered office, notice of the new location has to begiven to the Registrar who shall record the same.(c) Shifting of the registered office from one place to another within the same state (Sec.17A):The shifting of the registered office by a company from the jurisdiction of one registrar ofcompanies to the jurisdiction of another registrar of companies within the same state shall (inaddition to requirements under Sec.146) also require confirmation by the Regional Director. Forthis purpose, an application is to be made in the prescribed form and the confirmation shall becommunicated within four weeks. Such confirmation is required to be field within two monthswith the registrar of companies who shall register and certify the same within one month. Suchcertificate shall be conclusive evidence of the compliance of all requirements under the Act.
6) Write short note on Right to Information Act.Answer: Right to Information ActRight to information is a part of fundamental rights under Article 19 (1) of the Constitution.Article 19 (1) says that every citizen has freedom of speech and expression. As early as in 1976,the Supreme Court said that people cannot speak or express themselves unless they know. Indiais a democracy and people are the masters. Therefore the masters have the rights to know howthe Govts., meant to serve them, are functioning.In Indian democratic system, the right of every citizen to know information is no doubt arevolutionary step. Since long the officials in the name of administrative secrecy hesitated todisclose information and thereby kept in darkness to general public about important decision ofGovt. & other administrative bodies. This has widened the path of corruption in manifold. Themain aim of this act is to eradicate the existing practice of concealing facts & events and toempower every citizen to exercise their legal right in obtaining information under RTI Act, 2005.The ideal objectives of the RTI Act are to promote transparency and accountability in theworking of public authority and to set up a practical regime for giving citizens access toinformation under the control of public authorities.RTI Act, 2005 was implemented in our country on 15th June, 2005 and became operational on12.10.2005. The act extends to the whole of India except the State of Jammu and Kashmir.What rights are available under RTI Act, 2005Right to Information Act, 2005 empowers every citizen to: Ask any questions from the Government or seek any information. Take copies of any Govt. documents. Inspect any Govt. documents. Inspect any Govt. works. Take samples of materials of any Govt. work.
Coverage of the Act: The RTI Act covers all level of Govt. – Center, State, District and Local self Governing Bodieslike Panchyat and Municipal bodies. It also covers NGOs – that are financed substantially withpublic funds provided by Govt. Every citizen of India are empowered to seek information from public authority. Informationmust be shared for the interest of public as the purpose of this Act is to evolve an interfacebetween public authority and citizen.Since the Act imposes liability on public authority, it should not be misinterpreted rather itmakes the administration more responsive and removes sloth. Maximum possible informationmust be disclosed voluntarily.For this openness and change of attitude is required.