Some important case reference,mainly focused of Bangladesh Supreme court's decision. Though it is not organized by chronologically yet this document carry some relevant issues which may help people of legal background.
Vitiating Elements in the Formation of a Contract: Mistake and frustrationPreeti Sikder
Â
Learning Objectives: Students will:
a) learn the difference between Common Mistake and Mistake negativizing Consent
b) discover the strong link between mistake and frustration
Duress renders a contract voidable. Originally, only duress to the person through actual or threatened violence was recognized. While duress to goods, such as unlawfully detaining property, was not considered sufficient to avoid a contract. However, modern developments have extended the definition of duress to include economic duress, where commercial pressure suppresses a party's will. All that is now required to prove duress is suppression of voluntary consent, rather than completely overbearing a party's will. Remedies for duress include setting aside the contract, damages for the tort of intimidation, and potentially damages even if the contract was affirmed.
The anti slapp statute is now a powerful tool to discourage enforcement of no...Keystone Law
Â
Statutory changes have further limited the applicability of no contest clauses to apply only to certain specific types of legal actions â the most common being direct attacks on the estate planning documents themselves, known as âdirect contestsâ
Research Study on Contract Law: The equitable doctrine where brought to provide equity in cases which had a defect in consideration, at which it is unconscionable for a party to suffer the determent. The court has the power to practice judicial discretion in these circumstances, where seen there is unjust enrichment or unconscionable. However, it is mandatory for the applicant filing for equity to satisfy the conditions forming the equitable doctrine.
The predictability and certainty of these causes have lead to comprise the law, having it called âThe dangerous doctrineâ, as a person could preplan the events that will lead another person to be victimized by an estoppel. Rather having solid common law that sets the rules, equitable doctrine bend these rules and compromises the law.
Undue influence occurs when one person improperly pressures another into entering into a transaction, such as a gift, contract, or guarantee. There are two classes of undue influence claims. Actual undue influence (Class 1) requires proving that improper pressure was exerted. Presumed undue influence (Class 2) involves relationships where influence is presumed, such as parent-child or solicitor-client, unless the other party can prove the transaction was freely entered into with independent advice. The transaction must also manifestly disadvantage the claiming party. Undue influence claims can involve third parties if they had constructive notice of potential influence, such as when a husband acts as an intermediary for his wife guaranteeing his debts.
This document summarizes the law around tracing trust assets when misappropriated by a trustee. It discusses the differences between tracing in common law and equity. In common law, tracing is allowed if the property has not changed form, but if it has, only damages are available. In equity, tracing is allowed even if the property has changed form or been mixed with other assets. There are also specific rules discussed around tracing mixed assets, between multiple trusts, in bank accounts, and exceptions where tracing is not available such as against a bona fide purchaser or when the property can no longer be identified.
This document discusses the legal doctrine of duress across several contexts:
1) Duress to the person, where threats of violence can void agreements.
2) Duress to goods, where threats to seize property to extract payment may allow recovery of sums paid.
3) Economic duress, where threats to breach contracts or cause financial harm can also void agreements if the victim's will was overborne. The standards for economic duress require assessing the victim's protests and alternatives available.
Remedies for duress include recovering sums paid or treating agreements as voidable through the tort of intimidation.
The document provides an overview of the analytical framework of contract law. It discusses the key elements in the formation of contracts, including offers, acceptance, consideration, and intention to create legal relations. It also covers the requirements of certainty, completeness, and form in contracts. The document is divided into five parts that will examine how contracts are formed, the content of contracts, who can enforce contracts, how contracts can be destroyed, and how contracts come to an end or are discharged.
Vitiating Elements in the Formation of a Contract: Mistake and frustrationPreeti Sikder
Â
Learning Objectives: Students will:
a) learn the difference between Common Mistake and Mistake negativizing Consent
b) discover the strong link between mistake and frustration
Duress renders a contract voidable. Originally, only duress to the person through actual or threatened violence was recognized. While duress to goods, such as unlawfully detaining property, was not considered sufficient to avoid a contract. However, modern developments have extended the definition of duress to include economic duress, where commercial pressure suppresses a party's will. All that is now required to prove duress is suppression of voluntary consent, rather than completely overbearing a party's will. Remedies for duress include setting aside the contract, damages for the tort of intimidation, and potentially damages even if the contract was affirmed.
The anti slapp statute is now a powerful tool to discourage enforcement of no...Keystone Law
Â
Statutory changes have further limited the applicability of no contest clauses to apply only to certain specific types of legal actions â the most common being direct attacks on the estate planning documents themselves, known as âdirect contestsâ
Research Study on Contract Law: The equitable doctrine where brought to provide equity in cases which had a defect in consideration, at which it is unconscionable for a party to suffer the determent. The court has the power to practice judicial discretion in these circumstances, where seen there is unjust enrichment or unconscionable. However, it is mandatory for the applicant filing for equity to satisfy the conditions forming the equitable doctrine.
The predictability and certainty of these causes have lead to comprise the law, having it called âThe dangerous doctrineâ, as a person could preplan the events that will lead another person to be victimized by an estoppel. Rather having solid common law that sets the rules, equitable doctrine bend these rules and compromises the law.
Undue influence occurs when one person improperly pressures another into entering into a transaction, such as a gift, contract, or guarantee. There are two classes of undue influence claims. Actual undue influence (Class 1) requires proving that improper pressure was exerted. Presumed undue influence (Class 2) involves relationships where influence is presumed, such as parent-child or solicitor-client, unless the other party can prove the transaction was freely entered into with independent advice. The transaction must also manifestly disadvantage the claiming party. Undue influence claims can involve third parties if they had constructive notice of potential influence, such as when a husband acts as an intermediary for his wife guaranteeing his debts.
This document summarizes the law around tracing trust assets when misappropriated by a trustee. It discusses the differences between tracing in common law and equity. In common law, tracing is allowed if the property has not changed form, but if it has, only damages are available. In equity, tracing is allowed even if the property has changed form or been mixed with other assets. There are also specific rules discussed around tracing mixed assets, between multiple trusts, in bank accounts, and exceptions where tracing is not available such as against a bona fide purchaser or when the property can no longer be identified.
This document discusses the legal doctrine of duress across several contexts:
1) Duress to the person, where threats of violence can void agreements.
2) Duress to goods, where threats to seize property to extract payment may allow recovery of sums paid.
3) Economic duress, where threats to breach contracts or cause financial harm can also void agreements if the victim's will was overborne. The standards for economic duress require assessing the victim's protests and alternatives available.
Remedies for duress include recovering sums paid or treating agreements as voidable through the tort of intimidation.
The document provides an overview of the analytical framework of contract law. It discusses the key elements in the formation of contracts, including offers, acceptance, consideration, and intention to create legal relations. It also covers the requirements of certainty, completeness, and form in contracts. The document is divided into five parts that will examine how contracts are formed, the content of contracts, who can enforce contracts, how contracts can be destroyed, and how contracts come to an end or are discharged.
Mistakes can affect the validity of contracts in different ways depending on whether the mistake was common to both parties, unilateral, or mutual. [1] For a common mistake, the contract will usually be void if the subject matter does not exist or belongs to one party already. [2] For a unilateral mistake, the contract may be void if the mistaken party did not understand the contract terms and the other party was aware, while for identity mistakes additional conditions must be met depending on if parties were present. [3] For a mutual mistake where the parties misunderstood each other, the contract could be void if an objective reasonable person would not understand it in only one sense.
This document provides an introduction to the law of contract. It defines a contract as a legally binding agreement that can be enforced in courts. Contracts are classified as contracts by deed, which are formal legal documents, or simple contracts, which can be written, oral, or implied. Contracts are also classified as bilateral, involving promises exchanged between two parties, or unilateral, involving one promise in exchange for an act. The essential elements of a valid contract are agreement between the parties, consideration, intention to create legal relations, required form, capacity to contract, consent, and legality of purpose. Contracts can be void, voidable, or unenforceable depending on defects that impact validity or enforceability.
This document summarizes three court cases from the Philippines related to political law and sovereign immunity:
1) USA vs. Ruiz - The US was not liable for damages when a Philippine company was not awarded a contract to repair wharves at a US naval base, as the contract related to the sovereign function of national defense, not a commercial activity.
2) Department of Agriculture vs. NLRC - The Department of Agriculture was not protected by sovereign immunity in a case regarding unpaid wages and benefits to security guards at its facilities, as it entered into an employment contract in a non-sovereign capacity.
3) Republic vs. Sandoval - The state was not liable for damages from the deaths
Estoppel is a doctrine in English law that prevents a person from relying on certain legal rights or facts if relying on them would be unfair due to that person's previous representations or actions. There are different types of estoppel, including estoppel by representation of fact, promissory estoppel, and proprietary estoppel. Estoppel by representation prevents denying representations of fact that induced another's detrimental reliance. Promissory estoppel enforces promises without consideration if unfair not to. Proprietary estoppel transfers property interests if denying them after induced reliance would be unconscionable.
1. Pao On and Lau Yiu Long agreed to a share swap deal involving their companies. As part of the deal, Pao agreed not to sell 60% of the shares received for one year. Lau agreed to buy back those shares at $2.50 per share if the price dropped.
2. Pao later demanded that instead of a fixed buyback price, Lau merely indemnify him if the share price fell below $2.50. The House of Lords held this revised term was enforceable as it provided Pao additional protection and Lau suffered no detriment.
3. Consideration does not need to be contemporaneous, as long as it can be linked to the original agreement to
This document summarizes equitable remedies available under equity law, including injunctions and specific performance. It discusses the circumstances in which these remedies may be granted or refused by courts. Equitable remedies are designed to supplement common law remedies and are granted at the court's discretion to redress wrongs. Specific performance allows a court to order a party to carry out contractual obligations, while injunctions can be prohibitory (to refrain from an act) or mandatory (to perform an act). Courts will consider factors like adequacy of damages, claimant's conduct, readiness to perform contractual obligations, and delay or acquiescence when deciding whether to grant equitable remedies.
Force Majeure And Commercial Impracticability In Purchasing And Sales Contracts discusses when performance of contracts may be excused due to force majeure events or commercial impracticability. It covers:
1) Force majeure clauses and how courts interpret them. Performance may also be excused under the common law doctrine of commercial impracticability or the Uniform Commercial Code even without a clause.
2) Procedures that must be followed to validly excuse performance, such as providing notice and making fair allocations of limited supply.
3) Tips for drafting effective force majeure clauses to allocate risks and define excusable events.
The document discusses the doctrine of privity in contracts. It states that under the common law, only parties to a contract can enforce rights or obligations under that contract. However, there are exceptions that allow non-parties to circumvent this rule in certain situations. It then examines some of these exceptions in detail, including: actions by promisees, establishing oneself as a party to the contract, situation-specific exceptions recognized by courts, estoppel, agency relationships, and assignments.
The document discusses the common law doctrine of privity of contract, which states that only parties to a contract can acquire rights or obligations under that contract. It provides definitions and examples to illustrate this principle, including the 1861 case of Tweedle v Atkinson. It also outlines some exceptions to the privity rule, such as assignments, agency relationships, restrictive land covenants, and third-party insurance contracts. Assignments allow the benefit of a contract to be transferred to a third party through a transaction between the original party and the new assignee.
The document discusses the formation of a contract through offer and acceptance. It defines what constitutes a valid offer and acceptance under contract law. Some key points include:
- An offer is an expression of willingness to contract, while an invitation to treat is merely inviting offers.
- For a valid acceptance, the offeree must accept all terms of the offer without variation or new conditions.
- The general rule is that acceptance must be communicated to the offeror to form a binding contract, though there are some exceptions like the postal rule.
- An offer may be terminated by acceptance, rejection, revocation by the offeror, counteroffer, lapse of time, or failure of a condition of the
Force majeure clauses excuse parties from contractual obligations when unexpected events outside their control occur. Well-drafted commercial contracts contain force majeure clauses that specify the extent obligations are excused. Factors to consider include your role, relevant circumstances, and risks. The definition of a force majeure event should be tailored based on whether you are more or less likely to rely on the clause.
This document discusses the legal doctrine of estoppel. Estoppel is a principle of fairness that prevents a party from reverting to strict legal rights if doing so would cause hardship to the other party who reasonably relied on promises or assurances made by the first party. The document outlines the three conditions typically required for estoppel to apply - a representation was made through words or conduct, it was intended to affect the legal relationship, and the other party relied on it to their detriment. It provides examples from arbitration cases where estoppel prevented an employer from recovering overpayments or making changes to policies due to longstanding practices the union relied on.
The doctrine of privity of contract provides that only the parties to a contract can enforce rights or obligations under that contract. Over time, courts developed several exceptions to privity, including collateral contracts, agency relationships, and restrictive covenants that run with land. Academic debate questioned whether privity should be further modified or abolished. The Contracts (Rights of Third Parties) Act 1999 reformed English law by allowing expressly intended third party beneficiaries to directly enforce contract terms in certain circumstances.
This document discusses several issues that arise in mortgage foreclosure cases when the original promissory note has been sold and transferred multiple times during the securitization process.
It notes that a high percentage of notes have been "lost or destroyed" during securitization. While UCC §3-309 provides a process for enforcing lost notes, the foreclosing party must prove they are the holder of the note. However, in many cases the chain of assignments is broken and it is impossible to prove who the real holder is.
The document examines issues of standing, pleading requirements that the real party in interest be named, and evidentiary problems when witnesses cannot directly testify to facts of the default but only what is stated in computer
This document discusses several cases related to the intention required to form a legally binding contract in both social/domestic and business contexts. In social agreements between family members, there is a presumption that the parties did not intend to create legal relations unless evidence shows otherwise, such as reliance on the agreement. In business dealings, there is a presumption that the parties did intend to create legal relations, though this can be rebutted by language suggesting the agreement was not formally binding or was an expression of present intentions. Factors like reliance, written terms, and consideration can indicate whether the parties had the requisite intention to form an enforceable contract.
This document outlines various cases related to the legal concept of undue influence. It divides the cases into two classes: 1) Actual undue influence, and 2) Presumed undue influence. Within the latter class, there are further divisions of 2A involving relationships of trust/confidence, and 2B involving other relationships. The document also discusses concepts such as manifest disadvantage and when undue influence may be presumed given certain relationships between parties.
The document discusses how courts determine if parties intended an agreement to be legally binding. For social agreements between family/friends, there is a presumption they are not legally binding, but this can be rebutted. Business agreements are presumed to create legal relations. Exceptions where intent to form a contract may be lacking include vague promises, letters of comfort/intent depending on language, collective agreements unless in writing, and "free" gifts which courts have disagreed on how to classify.
The document discusses the capacity of various parties to enter into valid contracts under English law. It outlines several exceptions to the general rule that any person is competent to contract, including minors, those of unsound mind, drunkards, corporations, and more. It examines the contractual capacity and limitations of these groups in detail through explaining relevant case law and statutory provisions.
The document discusses several key aspects of contract law:
1. The parol evidence rule, which generally prevents extrinsic evidence from varying or interpreting a written contract. There are exceptions where the written agreement was not intended as the whole contract or where evidence aids in establishing validity, implied terms, or operation of the contract.
2. Whether statements made during negotiations are representations or terms, which determines available remedies if incorrect. Intent, timing, importance, reduction to writing, and special knowledge are considered.
3. The classification of terms as conditions or warranties, where a breach of a condition allows contract repudiation but a warranty breach only allows damages. Some terms may have intermediate status depending on breach consequences
Transfer of movable property under Private international law is effected by the act of parties or by operation of law. And there are different theories governing transfer of tangible and intangible properties.
This document provides an overview of the concepts of strict and absolute liability in tort law. It discusses key cases like Rylands v Fletcher that established the rule of strict liability. It defines strict liability as liability without fault where a person is liable despite the absence of negligence. The essentials to apply the rule from Rylands v Fletcher are discussed. Exceptions to strict liability like act of God and statutory authority are also summarized. The document then discusses the evolution of absolute liability from strict liability and highlights key cases in India like M.C. Mehta v. Union of India that established the principle of absolute liability.
This document discusses the concept of liability including its meaning, types, and theories. It defines liability as the state of being responsible or accountable for one's acts or omissions. Liability can be civil or criminal, with civil liability addressing private wrongs through damages and criminal liability addressing crimes against the state through punishment. It also discusses theories of liability including remedial liability, which provides a remedy when a right is violated, and penal liability, which focuses on punishing the wrongdoer. The document uses the case of Rylands v. Fletcher to illustrate the concept of strict liability.
Mistakes can affect the validity of contracts in different ways depending on whether the mistake was common to both parties, unilateral, or mutual. [1] For a common mistake, the contract will usually be void if the subject matter does not exist or belongs to one party already. [2] For a unilateral mistake, the contract may be void if the mistaken party did not understand the contract terms and the other party was aware, while for identity mistakes additional conditions must be met depending on if parties were present. [3] For a mutual mistake where the parties misunderstood each other, the contract could be void if an objective reasonable person would not understand it in only one sense.
This document provides an introduction to the law of contract. It defines a contract as a legally binding agreement that can be enforced in courts. Contracts are classified as contracts by deed, which are formal legal documents, or simple contracts, which can be written, oral, or implied. Contracts are also classified as bilateral, involving promises exchanged between two parties, or unilateral, involving one promise in exchange for an act. The essential elements of a valid contract are agreement between the parties, consideration, intention to create legal relations, required form, capacity to contract, consent, and legality of purpose. Contracts can be void, voidable, or unenforceable depending on defects that impact validity or enforceability.
This document summarizes three court cases from the Philippines related to political law and sovereign immunity:
1) USA vs. Ruiz - The US was not liable for damages when a Philippine company was not awarded a contract to repair wharves at a US naval base, as the contract related to the sovereign function of national defense, not a commercial activity.
2) Department of Agriculture vs. NLRC - The Department of Agriculture was not protected by sovereign immunity in a case regarding unpaid wages and benefits to security guards at its facilities, as it entered into an employment contract in a non-sovereign capacity.
3) Republic vs. Sandoval - The state was not liable for damages from the deaths
Estoppel is a doctrine in English law that prevents a person from relying on certain legal rights or facts if relying on them would be unfair due to that person's previous representations or actions. There are different types of estoppel, including estoppel by representation of fact, promissory estoppel, and proprietary estoppel. Estoppel by representation prevents denying representations of fact that induced another's detrimental reliance. Promissory estoppel enforces promises without consideration if unfair not to. Proprietary estoppel transfers property interests if denying them after induced reliance would be unconscionable.
1. Pao On and Lau Yiu Long agreed to a share swap deal involving their companies. As part of the deal, Pao agreed not to sell 60% of the shares received for one year. Lau agreed to buy back those shares at $2.50 per share if the price dropped.
2. Pao later demanded that instead of a fixed buyback price, Lau merely indemnify him if the share price fell below $2.50. The House of Lords held this revised term was enforceable as it provided Pao additional protection and Lau suffered no detriment.
3. Consideration does not need to be contemporaneous, as long as it can be linked to the original agreement to
This document summarizes equitable remedies available under equity law, including injunctions and specific performance. It discusses the circumstances in which these remedies may be granted or refused by courts. Equitable remedies are designed to supplement common law remedies and are granted at the court's discretion to redress wrongs. Specific performance allows a court to order a party to carry out contractual obligations, while injunctions can be prohibitory (to refrain from an act) or mandatory (to perform an act). Courts will consider factors like adequacy of damages, claimant's conduct, readiness to perform contractual obligations, and delay or acquiescence when deciding whether to grant equitable remedies.
Force Majeure And Commercial Impracticability In Purchasing And Sales Contracts discusses when performance of contracts may be excused due to force majeure events or commercial impracticability. It covers:
1) Force majeure clauses and how courts interpret them. Performance may also be excused under the common law doctrine of commercial impracticability or the Uniform Commercial Code even without a clause.
2) Procedures that must be followed to validly excuse performance, such as providing notice and making fair allocations of limited supply.
3) Tips for drafting effective force majeure clauses to allocate risks and define excusable events.
The document discusses the doctrine of privity in contracts. It states that under the common law, only parties to a contract can enforce rights or obligations under that contract. However, there are exceptions that allow non-parties to circumvent this rule in certain situations. It then examines some of these exceptions in detail, including: actions by promisees, establishing oneself as a party to the contract, situation-specific exceptions recognized by courts, estoppel, agency relationships, and assignments.
The document discusses the common law doctrine of privity of contract, which states that only parties to a contract can acquire rights or obligations under that contract. It provides definitions and examples to illustrate this principle, including the 1861 case of Tweedle v Atkinson. It also outlines some exceptions to the privity rule, such as assignments, agency relationships, restrictive land covenants, and third-party insurance contracts. Assignments allow the benefit of a contract to be transferred to a third party through a transaction between the original party and the new assignee.
The document discusses the formation of a contract through offer and acceptance. It defines what constitutes a valid offer and acceptance under contract law. Some key points include:
- An offer is an expression of willingness to contract, while an invitation to treat is merely inviting offers.
- For a valid acceptance, the offeree must accept all terms of the offer without variation or new conditions.
- The general rule is that acceptance must be communicated to the offeror to form a binding contract, though there are some exceptions like the postal rule.
- An offer may be terminated by acceptance, rejection, revocation by the offeror, counteroffer, lapse of time, or failure of a condition of the
Force majeure clauses excuse parties from contractual obligations when unexpected events outside their control occur. Well-drafted commercial contracts contain force majeure clauses that specify the extent obligations are excused. Factors to consider include your role, relevant circumstances, and risks. The definition of a force majeure event should be tailored based on whether you are more or less likely to rely on the clause.
This document discusses the legal doctrine of estoppel. Estoppel is a principle of fairness that prevents a party from reverting to strict legal rights if doing so would cause hardship to the other party who reasonably relied on promises or assurances made by the first party. The document outlines the three conditions typically required for estoppel to apply - a representation was made through words or conduct, it was intended to affect the legal relationship, and the other party relied on it to their detriment. It provides examples from arbitration cases where estoppel prevented an employer from recovering overpayments or making changes to policies due to longstanding practices the union relied on.
The doctrine of privity of contract provides that only the parties to a contract can enforce rights or obligations under that contract. Over time, courts developed several exceptions to privity, including collateral contracts, agency relationships, and restrictive covenants that run with land. Academic debate questioned whether privity should be further modified or abolished. The Contracts (Rights of Third Parties) Act 1999 reformed English law by allowing expressly intended third party beneficiaries to directly enforce contract terms in certain circumstances.
This document discusses several issues that arise in mortgage foreclosure cases when the original promissory note has been sold and transferred multiple times during the securitization process.
It notes that a high percentage of notes have been "lost or destroyed" during securitization. While UCC §3-309 provides a process for enforcing lost notes, the foreclosing party must prove they are the holder of the note. However, in many cases the chain of assignments is broken and it is impossible to prove who the real holder is.
The document examines issues of standing, pleading requirements that the real party in interest be named, and evidentiary problems when witnesses cannot directly testify to facts of the default but only what is stated in computer
This document discusses several cases related to the intention required to form a legally binding contract in both social/domestic and business contexts. In social agreements between family members, there is a presumption that the parties did not intend to create legal relations unless evidence shows otherwise, such as reliance on the agreement. In business dealings, there is a presumption that the parties did intend to create legal relations, though this can be rebutted by language suggesting the agreement was not formally binding or was an expression of present intentions. Factors like reliance, written terms, and consideration can indicate whether the parties had the requisite intention to form an enforceable contract.
This document outlines various cases related to the legal concept of undue influence. It divides the cases into two classes: 1) Actual undue influence, and 2) Presumed undue influence. Within the latter class, there are further divisions of 2A involving relationships of trust/confidence, and 2B involving other relationships. The document also discusses concepts such as manifest disadvantage and when undue influence may be presumed given certain relationships between parties.
The document discusses how courts determine if parties intended an agreement to be legally binding. For social agreements between family/friends, there is a presumption they are not legally binding, but this can be rebutted. Business agreements are presumed to create legal relations. Exceptions where intent to form a contract may be lacking include vague promises, letters of comfort/intent depending on language, collective agreements unless in writing, and "free" gifts which courts have disagreed on how to classify.
The document discusses the capacity of various parties to enter into valid contracts under English law. It outlines several exceptions to the general rule that any person is competent to contract, including minors, those of unsound mind, drunkards, corporations, and more. It examines the contractual capacity and limitations of these groups in detail through explaining relevant case law and statutory provisions.
The document discusses several key aspects of contract law:
1. The parol evidence rule, which generally prevents extrinsic evidence from varying or interpreting a written contract. There are exceptions where the written agreement was not intended as the whole contract or where evidence aids in establishing validity, implied terms, or operation of the contract.
2. Whether statements made during negotiations are representations or terms, which determines available remedies if incorrect. Intent, timing, importance, reduction to writing, and special knowledge are considered.
3. The classification of terms as conditions or warranties, where a breach of a condition allows contract repudiation but a warranty breach only allows damages. Some terms may have intermediate status depending on breach consequences
Transfer of movable property under Private international law is effected by the act of parties or by operation of law. And there are different theories governing transfer of tangible and intangible properties.
This document provides an overview of the concepts of strict and absolute liability in tort law. It discusses key cases like Rylands v Fletcher that established the rule of strict liability. It defines strict liability as liability without fault where a person is liable despite the absence of negligence. The essentials to apply the rule from Rylands v Fletcher are discussed. Exceptions to strict liability like act of God and statutory authority are also summarized. The document then discusses the evolution of absolute liability from strict liability and highlights key cases in India like M.C. Mehta v. Union of India that established the principle of absolute liability.
This document discusses the concept of liability including its meaning, types, and theories. It defines liability as the state of being responsible or accountable for one's acts or omissions. Liability can be civil or criminal, with civil liability addressing private wrongs through damages and criminal liability addressing crimes against the state through punishment. It also discusses theories of liability including remedial liability, which provides a remedy when a right is violated, and penal liability, which focuses on punishing the wrongdoer. The document uses the case of Rylands v. Fletcher to illustrate the concept of strict liability.
Detailed Presentation on General Defences under Law of Torts
Made By:
Edited By: Ayush Patria, Sangam University, Bhilwara
Follow us on Instagram: @law_laboratory
Website: www.lawlaboratory.in
This document discusses various theories of tort law, including the wider and narrower theories, and the pigeon hole theory. It also compares torts and crimes, torts and contracts, and explores concepts like damnum sine injuria, injuria sine damnum, malice, motive, malfeasance, misfeasance, and nonfeasance. Key differences between tort and crime include private vs public wrongs, the need for mens rea in crimes, and remedies involving damages vs punishment. Intent and motive are also distinguished.
Doc723 motion to vacate claims & stay further proceedingmalp2009
Â
The Chapter 11 Trustee filed a motion to vacate claims orders and stay further proceedings related to two claims filed against the bankruptcy estate. The claims, totaling $275,000 each, were based on promissory notes related to the debtor's purchase of a company called Premier. After the claims orders were entered allowing the claims in part, an indictment was filed describing how organized crime figures took control of the debtor and looted it for their personal benefit through fraudulent transactions like the one involving Premier. The indictment revealed that one of the claimants, Learned, was controlled by one of the crime figures and was used to defraud the debtor and launder money as part of the scheme.
1. The legal heirs of Capt. Chitralal Janaka Karunaratna sued Master Divers (PVT) Ltd, the owners of the vessel Silk Route Supplier III, for damages arising from breach of agreement and compensation for negligence after Karunaratna died from injuries sustained at work. [2]
2. The High Court awarded damages under the crew agreement and compensation for negligence. On appeal, Master Divers argued the awards were excessive as damages couldn't exceed the crew agreement amount, and there was a misjoinder of causes of action. [3]
3. The Court of Appeal upheld the High Court's judgment, finding that the crew agreement bound only the legal heirs, not depend
Justification of Torts & General Defencesairlawacademy
Â
Liability under Tort is a bit tricky subject. Only the injury which is legal but not any actual damage is protected and compensated. But as no law is good without its exception, such is Law of Torts without the General Defences and Justification.
This document summarizes the rule of strict liability established in Rylands v. Fletcher (1868). The rule holds that a person may be liable for harm caused, even without negligence, in certain situations involving dangerous things or non-natural uses of land. Specifically, the rule applies if 1) a dangerous thing escapes, 2) onto another's land, 3) due to a non-natural use of the land by the defendant. The rule was established in Rylands v. Fletcher, where water stored in a reservoir on the defendant's land flooded the plaintiff's mines through undiscovered shafts. Though the defendant was not negligent, he was still held liable under the rule of strict liability.
The document discusses the legal principle of lifting the corporate veil, known as piercing the veil. It provides background on the key cases that have shaped this area of law over time, including Salomon v Salomon, Adams v Cape, and recent cases like VTB v Nutritek and Prest v Petrodel Resources. While early cases established that the veil could be lifted in the interest of justice, more recent rulings have reinforced that the veil will only be lifted in cases of clear impropriety or where concealing true facts, not simply for reasons of justice. Courts now require strong justification before disregarding the separate legal status of a company.
This document is a certificate of service for a response filed by Allied Systems Holdings, Inc. and Allied Systems, Ltd. (L.P.) regarding a motion by petitioning creditors BDCM Opportunity Fund II, LP, Black Diamond CLO 2005-1 Adviser L.L.C., and Spectrum Investment Partners LP to shorten time for a hearing on appointing a trustee. The certificate lists the parties that were served the response by mail or hand delivery on May 21, 2012.
The document lists 16 cases relevant to the topic of consideration in contract law. It provides brief summaries of 3 key cases:
1. Currie v Misa - The House of Lords upheld the majority decision that a banker was entitled to payment from a purchaser of bills of exchange, even after the seller firm failed and payment was stopped.
2. Dunlop v Selfridge Ltd - The House of Lords held that a clause requiring payment of ÂŖ5 per tyre sold below a set price was a genuine pre-estimate of damages and not a penalty, so it was enforceable.
3. Pao On v Lau Yiu Long - The Privy Council ruled that a promise to perform a pre-
The document lists 14 case citations related to consideration in contract law. Some key principles that can be drawn from the cases include:
1) Past services can provide consideration for a future promise if it can be implied that payment was intended for the past services at the time they were rendered.
2) A promise to perform a pre-existing contractual duty to a third party can constitute consideration.
3) Forbearance from suing on a debt can serve as consideration if promised in exchange.
4) Additional performance beyond a party's legal duty, if requested and paid for, can also provide consideration to support a contract.
The document provides a high level overview of important consideration-related cases
1) The document discusses various defenses that can be used in tort law to avoid liability, including volenti non fit injuria, plaintiff as the wrongdoer, inevitable accident, act of God, private defense/self-defense, mistake, necessity, and statutory authority.
2) It provides examples and case law illustrations for each defense. For inevitable accident, it discusses situations involving unexpected medical emergencies of drivers that resulted in car accidents.
3) For act of God, it notes this defense applies when damage is caused solely by natural forces like floods, storms, or earthquakes without any human involvement. It cites a case where a dam break was ruled not an act of God due to evidence of negligent
Interim Injunctions to Freeze Assets in Fraud Casesppengelley
Â
1. The document discusses the history and development of Mareva injunctions in common law jurisdictions like the UK and Canada. It traces the expansion of such injunctions from exceptions to the common law rule against pre-judgment asset freezing to more broad acceptance.
2. A key case was Mareva Compania Naviera SA v. International Bulkcarriers SA which established that courts have authority to freeze a defendant's assets before trial if there is a risk they may dispose of their assets and defeat a potential judgment.
3. Subsequent cases set guidelines for Mareva injunctions while also broadening the scope to include risks of asset removal rather than just subject matter of litigation. Mills v. Petrovic created a
This document discusses the fusion of equity and common law in England following the Judicature Acts. It provides examples of how:
1) Early cases disagreed on whether the Acts fused equity and common law or just consolidated their administration. Over time there was some comingling and co-mingling of the two.
2) Equitable principles and remedies began to be applied in cases that would have previously been matters of common law alone, through doctrines like analogy.
3) Equity generally prevailed over the common law in cases of conflict between them, though procedures remained separate. Over the long run this led to a replacement of many common law rules with equitable rules.
This document discusses various provisions related to contracts and obligations under Philippine law. It begins by explaining the standard of care required to fulfill obligations (diligence of a good father of a family) and discusses examples of liability. It then addresses the rights of creditors prior to delivery of goods, distinguishing personal and real rights. Different types of delivery are outlined, including actual, constructive, and delivery of accessions/accessories. Remedies for failed obligations are discussed, noting that specific performance is not available and the obligation must be fulfilled at the debtor's expense. The document concludes by covering default, including when it arises and its effects on risk and liability.
Assignments Of Equitable Interests And The Origins Of Re RoseScott Donald
Â
This document discusses the origins and development of the rule in Re Rose. It traces the rule back to earlier foundational cases in trust law from the 18th century that established that courts could not create or enforce trusts where the facts did not support one. Over the following century, the law was refined such that courts could enforce voluntary transfers of equitable interests where the transferor had done everything possible to effect the transfer, even if legal title was not fully transferred. This evolved into the rule stated in Re Rose that a voluntary assignment of an equitable interest is effective when the assignor has done all they can to transfer the interest.
This document discusses the common law doctrine of estoppel and its two main forms - promissory estoppel and proprietary estoppel.
Promissory estoppel prevents a party from denying or going back on a promise or representation that another party relied on to their detriment. It acts as a shield, not a sword, and can be used as a defense but not to establish a new cause of action. Proprietary estoppel prevents a property owner from denying another's rights in that property if the owner encouraged or allowed the other party to deal with the property as if they had rights in it, such as by spending money improving the property. Both forms of estoppel aim to prevent injustice by not allowing a party to
This document briefly explains the June compliance calendar 2024 with income tax returns, PF, ESI, and important due dates, forms to be filled out, periods, and who should file them?.
Guide on the use of Artificial Intelligence-based tools by lawyers and law fi...Massimo Talia
Â
This guide aims to provide information on how lawyers will be able to use the opportunities provided by AI tools and how such tools could help the business processes of small firms. Its objective is to provide lawyers with some background to understand what they can and cannot realistically expect from these products. This guide aims to give a reference point for small law practices in the EU
against which they can evaluate those classes of AI applications that are probably the most relevant for them.
Matthew Professional CV experienced Government LiaisonMattGardner52
Â
As an experienced Government Liaison, I have demonstrated expertise in Corporate Governance. My skill set includes senior-level management in Contract Management, Legal Support, and Diplomatic Relations. I have also gained proficiency as a Corporate Liaison, utilizing my strong background in accounting, finance, and legal, with a Bachelor's degree (B.A.) from California State University. My Administrative Skills further strengthen my ability to contribute to the growth and success of any organization.
Defending Weapons Offence Charges: Role of Mississauga Criminal Defence LawyersHarpreetSaini48
Â
Discover how Mississauga criminal defence lawyers defend clients facing weapon offence charges with expert legal guidance and courtroom representation.
To know more visit: https://www.saini-law.com/
Sangyun Lee, 'Why Korea's Merger Control Occasionally Fails: A Public Choice ...Sangyun Lee
Â
Presentation slides for a session held on June 4, 2024, at Kyoto University. This presentation is based on the presenterâs recent paper, coauthored with Hwang Lee, Professor, Korea University, with the same title, published in the Journal of Business Administration & Law, Volume 34, No. 2 (April 2024). The paper, written in Korean, is available at <https://shorturl.at/GCWcI>.
Receivership and liquidation Accounts
Being a Paper Presented at Business Recovery and Insolvency Practitioners Association of Nigeria (BRIPAN) on Friday, August 18, 2023.
Lifting the Corporate Veil. Power Point Presentationseri bangash
Â
"Lifting the Corporate Veil" is a legal concept that refers to the judicial act of disregarding the separate legal personality of a corporation or limited liability company (LLC). Normally, a corporation is considered a legal entity separate from its shareholders or members, meaning that the personal assets of shareholders or members are protected from the liabilities of the corporation. However, there are certain situations where courts may decide to "pierce" or "lift" the corporate veil, holding shareholders or members personally liable for the debts or actions of the corporation.
Here are some common scenarios in which courts might lift the corporate veil:
Fraud or Illegality: If shareholders or members use the corporate structure to perpetrate fraud, evade legal obligations, or engage in illegal activities, courts may disregard the corporate entity and hold those individuals personally liable.
Undercapitalization: If a corporation is formed with insufficient capital to conduct its intended business and meet its foreseeable liabilities, and this lack of capitalization results in harm to creditors or other parties, courts may lift the corporate veil to hold shareholders or members liable.
Failure to Observe Corporate Formalities: Corporations and LLCs are required to observe certain formalities, such as holding regular meetings, maintaining separate financial records, and avoiding commingling of personal and corporate assets. If these formalities are not observed and the corporate structure is used as a mere façade, courts may disregard the corporate entity.
Alter Ego: If there is such a unity of interest and ownership between the corporation and its shareholders or members that the separate personalities of the corporation and the individuals no longer exist, courts may treat the corporation as the alter ego of its owners and hold them personally liable.
Group Enterprises: In some cases, where multiple corporations are closely related or form part of a single economic unit, courts may pierce the corporate veil to achieve equity, particularly if one corporation's actions harm creditors or other stakeholders and the corporate structure is being used to shield culpable parties from liability.
The Future of Criminal Defense Lawyer in India.pdfveteranlegal
Â
https://veteranlegal.in/defense-lawyer-in-india/ | Criminal defense Lawyer in India has always been a vital aspect of the country's legal system. As defenders of justice, criminal Defense Lawyer play a critical role in ensuring that individuals accused of crimes receive a fair trial and that their constitutional rights are protected. As India evolves socially, economically, and technologically, the role and future of criminal Defense Lawyer are also undergoing significant changes. This comprehensive blog explores the current landscape, challenges, technological advancements, and prospects for criminal Defense Lawyer in India.
What are the common challenges faced by women lawyers working in the legal pr...lawyersonia
Â
The legal profession, which has historically been male-dominated, has experienced a significant increase in the number of women entering the field over the past few decades. Despite this progress, women lawyers continue to encounter various challenges as they strive for top positions.
Genocide in International Criminal Law.pptxMasoudZamani13
Â
Excited to share insights from my recent presentation on genocide! đĄ In light of ongoing debates, it's crucial to delve into the nuances of this grave crime.
Business law for the students of undergraduate level. The presentation contains the summary of all the chapters under the syllabus of State University, Contract Act, Sale of Goods Act, Negotiable Instrument Act, Partnership Act, Limited Liability Act, Consumer Protection Act.
1. Md. Oliullah
LL.B, LL.M
advocate.oliullah@gmail.com
"When a substituted provision is declared void or repealed, the former provision shall be effective
immediately"
Ful Chand DasV. Mohammad Hamad 34 DLR (AD) 361
When a provision of law repealed by a statutory provision of law repealed by a statutory provision which
is declared ultra vires the constitution, the former provision is automatically revived on such declaration.
If the amended statute is wholly void, the statute sought to be amended is not affected but remains in
force. Where the law was amended but subsequently the amendment was repealed, the amendement has
to be completely ignored and the provisions of the law as they stood prior to amendment are to be taken
into consideration.
Sree Monju KumarSaha Vs. State- 44 DLR 354 (AD)
Bail in a pending appeal in a pending criminal appeal when an appellant files an application for bail, the
Court should not ordinarily issue a Rule. The Court may grant or refuse bail or ask the petitioner to come
up with a separate petition and may hear the state if necessary before disposing of an application for bail.
Section 39 ofSpecific ReliefAct
Abdul Mannan Sheikh Vs. Soleman Bewa 59 DLR 392
The cancellation of a document is much more than a declaratory relief that it is a substantive relief and ad
valorem Court fee will be necessary for such relief under section 7 (IV)(C) of the Court Fees Act.
Corroborative Evidence
The state Vs. Md. Ershad Ali Sikder& ors.12 BLT (HCD) - 125
For corroborative evidence Court must look at the broad spectrum of the approver's version and then find
out whether there is other evidence to corroborate and lend assurance to that version. The nature and
extent of such corroboration may depend upon the facts of different cases. Corroboration need not be in
the form of ocular testimony of witnesses and may even be in the form of circumstantial evidence. It is to
be borne in mind that the evidence of approver is held to be trustworthy, must be shown that the story
given by approver so far as an accused is concerned, must implicate him in such a manner as to give rise
to a conclusion of guilt beyond reasonable doubt. Insistence upon corroboration is based on the rule of
caution and not merely a rule of law.
A Reasonable Doubt
The state v. Md. Gaus Meah @ Rana & ors. 13 BLT(HCD) 136)
A reasonable doubt is not an imaginary, trivial, or merely a possible doubt, but a fair doubt based upon
reason and common sense. it must grow out of the evidence in the case. It is always to be kept in view
that exaggerated devotion to Rule of Benefit of doubt must not nurture fanciful doubt.
2. The requirements ofcorrectly constituting a limited company
Salomon V A Salomon And Co Ltd [1897]AC 22 Case Summary
Separate Legal Personality (SLP) is the basic tenet on which company law is premised. Establishing the
foundation of how a company exists and functions, it is perceived as, perhaps, the most profound and
steady rule of corporate jurisprudence. Contrastingly, the rule of "SLP" has experienced much turbulence
historically, and is one of the most litigated aspects within and across jurisdictions.1 Nonetheless, this
principle, established in the epic case of Salomon v Salomon,2 is still much prevalent, and is
conventionally celebrated as forming the core of, not only the English company law, but of the universal
commercial law regime. Commonly known as: Salomon v Salomon
FACTS
Salomon transferred his business of boot making, initially run as a sole proprietorship, to a company
(Salomon Ltd.), incorporated with members comprising of himself and his family. The price for such
transfer was paid to Salomon by way of shares, and debentures having a floating charge (security against
debt) on the assets of the company. Later, when the company's business failed and it went into
liquidation, Salomon's right of recovery (secured through floating charge) against the debentures stood
aprior to the claims of unsecured creditors, who would, thus, have recovered nothing from the liquidation
proceeds.
To avoid such alleged unjust exclusion, the liquidator, on behalf of the unsecured creditors, alleged that
the company was sham, was essentially an agent of Salomon, and therefore, Salomon being the principal,
was personally liable for its debt. In other words, the liquidator sought to overlook the separate
personality of Salomon Ltd., distinct from its member Salomon, so as to make Salomon personally liable
for the company's debt as if he continued to conduct the business as a sole trader.
ISSUE
The case concerned claims of certain unsecured creditors in the liquidation process of Salomon Ltd., a
company in which Salomon was the majority shareholder, and accordingly, was sought to be made
personally liable for the company's debt. Hence, the issue was whether, regardless of the separate legal
identity of a company, a shareholder/controller could be held liable for its debt, over and above the capital
contribution, so as to expose such member to unlimited personal liability.
RULING
The Court of Appeal, declaring the company to be a myth, reasoned that Salomon had incorporated the
company contrary to the true intent of the then Companies Act, 1862, and that the latter had conducted the
business as an agent of Salomon, who should, therefore, be responsible for the debt incurred in the course
of such agency.The House of Lords, however, upon appeal, reversed the above ruling, and unanimously
held that, as the company was duly incorporated, it is an independent person with its rights and liabilities
appropriate to itself, and that "the motives of those who took part in the promotion of the company are
3. absolutely irrelevant in discussing what those rights and liabilities are".Thus, the legal fiction of
"corporate veil" between the company and its owners/controllers4 was firmly created by the Salomon
case.
In Rylands v Fletcher (1868)LR 3 HL 330
Raland V. Fletcher is one of the most famous and a landmark case in tort. It was an English case in year
1868 and was progenitor of the doctrine of Strict Liability for abnormally dangerous conditions and
activities. This case paved the way for judgment of many more cases on nuisance and liability in case of
negligence. Even if one is not on fault, he can be held liable for negligence. Strict liability states a person
responsible for the damage or loss done occurred to other by his or her activity without the concern of
elements such as negligence, mens rea and any kind of remote liability.
The defendants employed independent contractors to construct a reservoir on their land. The contractors
found disused mines when digging but failed to sealthem properly. They filled the reservoir with water.
As a result, water flooded through the mineshafts into the plaintiff's mines on the adjoining property. The
plaintiff secured a verdict at Liverpool Assizes. The Court of Exchequer Chamber held the defendant
liable and the House of Lords affirmed their decision.
REQUIREMENTS
1. The defendant brought something onto his land
In law, there is a difference between things that grow or occur naturally on the land, and those that are
accumulated there artificially by the defendant. For example, rocks and thistles naturally occur on land.
However,the defendants in Rylands v Fletcher brought water onto the land.
2. Non-natural use of the land
In the House of Lords, Lord Cairns LC, laid down the requirement that there must be a non-natural use of
the land.
Recent examples are:
Ellison v Ministry of Defence (1997) 81 BLR 101, [1997]CLY 3864
3. Something likely to do mischief
The thing brought onto the land must be something likely to do mischief if it escapes. In such a situation
the defendant keeps it in at his peril.
4. Escape
There must be an escape of the dangerous substance from the defendant's land.
5. Foreseeability
the Cambridge Water Case (1994) is relevant in this jurisdiction
REMEDIES
The owner of land close to the escape can recover damages for:
1. Physical harm to the land itself (as in Rylands v Fletcher) and to other property.
2. It is no longer clear if a claimant can recover for personal injury.
DEFENCES
A number of defences have been developed to the rule in Rylands v Fletcher.
1. Consent
The express or implied consent of the claimant to the presence of source of the danger, provided there has
been no negligence by the defendant, will be a defence.
2. Common Benefit
4. If the source of the danger was maintained for the benefit of both the claimant and defendant, the
defendant will not be liable for its escape. This defence is either related to the defence of consent or the
same thing. According to Winfield & Jolowicz, p551, "common benefit seems redundant (and indeed
misleading) as an independent defence".
3. Act of a stranger
The defendant will not be liable if a stranger was responsible for the escape.
Rickards v Lothian [1913] AC 263. The D was not liable when an unknown person blocked a basin on his
property and caused a flood, which damaged a flat below.
4. Statutory authority
A statute may require a person or body to carry out a particular activity. Liability under Rylands v
Fletcher may be excluded upon the interpretation of the statute.
5. Act of God
An act of God is an event which 'no human foresight can provide against, and of which human prudence
is not bound to recognise the possibility' (per Lord Westbury, Tennent v Earl of Glasgow (1864) 2 M
(HL) 22 at 26-27).
Nichols v Marsland (1876) 2 ExD 1. Exceptionally heavy rain caused artificial lakes, bridges and
waterways to be flooded and damage adjoining land. The D was not liable.
However,Nichols v Marsland was doubted by the House of Lords in:
Greenock Corporation v Caledonian Railway [1917] AC 556. The corp. constructed a concrete paddling
pool for children in the bed of a stream and obstructed the natural flow of the stream. Owing to a rainfall
of extraordinary violence the stream overflowed at the pond and damaged the property of the plaintiffs.
Held that the extraordinary rainfall did not absolve the corp. from responsibility and that they were liable
in damages.
6. Default of the claimant
If the escape is the fault of the claimant there will be no liability. Alternatively, there may be contributory
negligence on the part of the claimant.
"Marbury v. Madison (1803) is a landmark case in the field ofJudicial Review"
On this day in 1803, the Supreme Court, led by Chief Justice John Marshall, decides the landmark case of
William Marbury versus James Madison, Secretary of State of the United States and confirms the legal
principle of judicial reviewâthe ability of the Supreme Court to limit Congressional power by declaring
legislation unconstitutionalâin the new nation.
The court ruled that the new president, Thomas Jefferson,via his secretary of state,James Madison, was
wrong to prevent William Marbury from taking office as justice of the peace for Washington County in
the District of Columbia. However, it also ruled that the court had no jurisdiction in the case and could
not force Jefferson and Madison to seat Marbury. The Judiciary Act of 1789 gave the Supreme Court
jurisdiction, but the Marshall court ruled the Act of 1789 to be an unconstitutional extension of judiciary
power into the realm of the executive.
In writing the decision, John Marshall argued that acts of Congress in conflict with the Constitution are
not law and therefore are non-binding to the courts, and that the judiciaryâs first responsibility is always to
uphold the Constitution. If two laws conflict, Marshall wrote,the court bears responsibility for deciding
which law applies in any given case. Thus,Marbury never received his job.
5. Jefferson and Madison objected to Marburyâs appointment and those of all the so-called âmidnight
judgesâ appointed by the previous president, John Adams, after Jefferson was elected but mere hours
before he took office. To further aggravate the new Democratic-Republican administration, many of these
Federalist judgesâalthough Marbury was not one of themâwere taking the bench in new courts formed by
the Judiciary Act, which the lame-duck Federalist Congress passed on February 13, 1801, less than a
month before Jeffersonâs inauguration on March 4.
As part of the âRevolution of 1800,â President Thomas Jefferson and his Democratic-Republican
followers launched a series of attacks against the Federalist-controlled courts. The new Democratic-
Republican-controlled Congress easily eliminated most of the midnight judges by repealing the Judiciary
Act in 1802. They impeached Supreme Court justice Samuel Chase,but acquitted him amidst inner-party
squabbles. The Chase acquittal coupled with Marshallâs impeccably argued decision put an end to the
Jeffersonian attack.
what is Legal Character pursuant to section 42 of Specific Relief Act 1877?
The expression "legal character"in section 42 of the act denotes a personal and special right not arising
out of contract or tort, but of legal recognition. [ Mirpur Mazar Co-operative Market Society Ltd vs
Ministry of Works Government of people's Republic of Bangladesh and others 52 DLR 263]
What the plaintiff must prove in a suit under section 9 ofThe Specific ReliefAct :
In a suit under section 9 the plaintiff is to prove -
[Sona Mia vs Prokash AIR 1940 (Cal) 464.
(i) that he was in possession;
(ii) that he has been dispossessed; i.e. deprived of actualphysical possession of land.
(iii) that the dispossession took place without his consent;
(iv) that it was done otherwise than in due course of law;
(v) that the dispossession took place within six month before institution of the suit under section 9 of the
Specific Relief Act.
21 DLR 264 (WP)â [The State vs.Yousuf Ali Khan]
Scandalisation of court is grossest form of contempt. Legal practitioners may be punished for contempt of
court even for language professedly used in discharge of their functions as advocate. Advocate is guilty of
contempt in making wild allegations of corruption against the trying Judge without verifying and
satisfying himself that the allegations were in fact sustainable. He cannot claim any privilege if not acted
in a bonafide diligent manner. Legal practitioners are not agents of persons who pay them but act in the
administration of justice.
The question that arises is whether a man and woman living together for a long time, even without a valid
marriage, would raise as in the present case,a presumption of a valid marriage entitling such a woman to
6. maintenance.
On the question of presumption of marriage, we may usefully refer to a decision of the House of Lords
rendered in the case of Lousia Adelaide Piers & Florence A.M. De Kerriguen v. Sir Henry Samuel Piers
[(1849) II HLC 331], in which their Lordships observed that the question of validity of a marriage cannot
be tried like any other issue of fact independent of presumption. The Court held that law
7. will presume in favour of marriage and such presumption could only be rebutted by strong and
satisfactory evidence.
Acceptance by Performance (section 8 ofthe Contract Act)
Carlill vs Carbolic smoke ball co. 1892 2 QB 484
Where the defendant company advertised to pay $100 to any one who will be caught influenza after using
smoke ball produced by the company and Mrs. Carlill used the smoke ball as per the instructions given by
the company and she was caught influenza and sued to recover $100. Her claim was accepted by the
Court and the Court rejected the arguments of the defendants, inter alia, that the plaintiff should have
notified her intention of acceptance to the defendant.
Doctrine ofFactum Valent
[ 50 DLR (AD) 47, 1997 BLD 289A,1998 MLR 76A]
Hence it is that a marriage once performed and solemnized though it be without the consent of the
guardian has been held by the court to be valid, because the texts which prescribe the rules for the consent
of guardian for the purpose of marriage have been held to be merely directory once the celebration of
marriage in fact is established there shall be a presumption there being of marriage in law and observance
of essential ceremonies.
Aggrieved Party"In Dr. Mohiudding Farooque v. Bangladesh" the Appellate Division held that in so far
as it concerns public wrongs of public injury or invasion of the fundamental rights of an indeterminate
number of people any member of the public being a citizen suffering the common injury or common
invasion in common with others has a right to invoke the jurisdiction under article 102 of the
Constitution.
Asraf Ali @ Sheru vs State [7 BLC 616]
An exculpatory confession is no confession in the eye of law, as in such confession the accused does not
admit his guilty in terms of the offence complained. In a confession of this nature, the confessing accused
conveniently keeps himself away from the crime and poses to be an idle spectator,ostensibly under
duress. Learned Sessions Judge was,therefore,manifestly wrong in convicting the accused appellants for
murdering Ibrahim, essentially on the basis of totally exculpatory confessions, while acquitting accused
Abu Bakkar, who is found to be the real killer of Ibrahim.
Onus ofproving an offence is always upon the prosecution:
[Pulin Mahajan Vs. The State, 16 MLR (AD) 386;8 ADC 982]
Held: In a criminal case onus of proving all the ingredients of an offence is always upon the prosecution
and at no stage does it shift to the defence. This burden is neither neutralised nor shifted. Even in cases
where the defence of the accused does not appear to be credible or absolutely false that burden does not
any the less. Whenever this burden is discharged, it is only when the accused is required to explain the
essential elements in the prosecution case which would negative it. Where the onus shifts, and the
evidence on his behalf probabilities the plea, he will be entitled to the benefit of doubt.
Pardanshin lady- onus is upon the recipients of the document to show that the executrix had proper and
independent advice before she executed the document:
Held: It is now settled principles of law that when a document is executed and registered by a village
8. illiterate pardanshin lady onus heavily lies upon the recipients of the document to show that the executrix
had proper and independent advice before she executed the document in question. In a case of fraud the
question of limitation will run from the date of knowledge and not from the date of execution of the
disputed document. [Md. Abdul Barik and another Vs. Most. Serajan Nessa and another, 8 ADC 16]
Tera Mia vs Crown 7 DLR 539
Where gun-shots were directed towards the lower part of a victimâs body who died subsequently and the
injury was not shown to be one which was sufficient in the ordinary course of nature to cause death. It
was held that, it could not be said the offence committed was one of murder.
A telephone conversation between two private person is not a statement to the police-officer. But a tape â
recorded conversation is admissible subject to three conditions : a. it is relevant to the matter in issue; b.
the voice is identified; and c. the accuracy is proved by the elimination of the possibility of ensuring of
the tape record . (AIR 1973 SC 157)
Government of Bangladesh VS Mirpur Seipucca (tin-shed) Kalayan Samity 54 DLR 364
The acceptance of the secondary evidence by the Subordinate Judge and his decision in the suit relaying
upon such non-admissible evidence are errors of law apparent on the face of the record.
Government of Bangladesh VS Mirpur Seipucca (tin-shed) Kalayan Samity 54 DLR 364
The acceptance of the secondary evidence by the Subordinate Judge and his decision in the suit relaying
upon such non-admissible evidence are errors of law apparent on the face of the record.
Chan vs The Minister of Immigration: 1989: High Court
Facts of the case:
Chan Yee Kin is a citizen of China and was a member of a faction of Red Guards which lost the struggle
for control of that organisation in his local area. He was questioned by
police and was detained for 2 weeks in 1968. He tried to escape but was caught and received increasing
periods of detention. In 1974 he escaped to Macau and stowed away on a ship to Australia which he
entered illegally in 1980.
He applied for refugee status on 29 November 1982. He was refused the status of a 'refugee' within the
meaning of the 1951 Refugee Convention. He challenged the decision to the single judge of the Federal
Court. The Court set aside the decision of the Immigration department and referred to the Minister for
reconsideration. The Minister appealed to the Full Federal Court against the decision. The Full Federal
Court upheld the appeal.
Mr Chan went to the High Court against the decision of the Full Federal Court.
Decision: The court held that the definition of a 'refugee' involved a mixed subjective and objective test.
The question whether or not a person had the status of a 'refugee' within the meaning of the 1951
Convention was one of determination upon the facts as they existed when the person concerned sought
recognition as a 'refugee'.
The Court held the 'persecution' was not defined in the Convention, although Articles 31 and 33 of the
Convention referred to those whose life or freedom might be threatened. There was a generalacceptance
9. that a threat to life or freedom amounted to persecution. Some would confine persecution to a threat to
life or freedom, whereas others would extend it to other measures in disregard of human dignity.
Comment: This case is important as it dealt with the interpreta-tion of the definition of a 'refugee' as
stipulated in the 1951
Convention. The definition, according to the Court, needs both subjective (mental) and objective (facts)
test.
protect him from his mother. He had no case to stand on in the facts presented to the Court.
50 DLR (HCD) 103
āĻ āĻāĻŋāĻ¯ ā§āĻ āĻāĻ āĻ¨ āĻāĻŋāĻˇāĻ¯ā§ āĻļā§āĻ¨ā§āĻ¨ā§āĻ° āĻ¸āĻŽā§ āĻāĻ¸ā§āĻŽā§āĻ° āĻĻā§āĻāĻŋāĻ˛ā§ āĻĒā§āĻ°āĻŽā§āĻ¨ āĻ¤āĻĨā§ āĻĻāĻāĻ˛āĻ˛ āĻĒāĻ¤ā§āĻ° āĻāĻŋāĻ¯āĻŋāĻāĻ¨ā§ āĻāĻ°ā§ ā§ā§ āĻ¨ā§ āĻāĻŋāĻ āĻ¤ā§āĻ° āĻāĻŋāĻāĻŋāĻ¯āĻ¤
āĻāĻ¸ā§āĻŽā§āĻ° āĻāĻŋāĻ°ā§āĻ¯ā§ āĻŽā§āĻŽāĻ˛ā§āĻŋā§āĻāĻ¤āĻ˛ āĻāĻ°ā§ ā§ā§ āĻ¨ā§ā§¤
āĻ āĻ¸ā§āĻŽā§āĻ° āĻĒāĻā§āĻˇ āĻĨāĻĨāĻ¯āĻ āĻŽā§āĻŽāĻ˛ā§ āĻ āĻŋāĻ¯ā§āĻšāĻāĻ¤ āĻĨāĻĻā§ā§āĻ° āĻāĻ¨āĻ¯ āĻĨāĻā§āĻ¨ āĻĻāĻ°āĻŋā§āĻ¸ā§āĻ¤ āĻĨāĻĻā§ā§ āĻĨāĻšā§āĻ āĻŋā§ āĻ¨ā§ āĻĨāĻšā§āĻ āĻāĻ¸ā§āĻŽā§āĻ° āĻāĻŋāĻ°ā§āĻ¯ā§ āĻ āĻāĻŋāĻ¯ ā§āĻ
āĻāĻ āĻ¨āĻā§āĻ°ā§ āĻšāĻ¯āĻŋ āĻāĻāĻ¨ā§ āĻĨāĻ¸ āĻāĻŋāĻˇā§ ā§¨ā§Ŧā§Ģ āĻāĻ¸ āĻ ā§¨ā§Ŧā§Ģ āĻāĻŋ āĻ§ā§āĻ°ā§āĻ° āĻāĻŋāĻ§ā§āĻ¨ āĻ āĻ¨ā§ ā§ā§ā§ āĻĻā§ā§āĻ°ā§ āĻāĻĻā§āĻ˛āĻ¤ āĻ¤āĻĨā§ āĻĨ āĻĨāĻā§āĻ¨ āĻā§āĻ°ā§āĻāĻŋā§āĻ¯āĻ¨ā§āĻ¯āĻ˛āĻ°
āĻĻā§ā§ā§āĻ¤ā§āĻŦ āĻšāĻ¯ā§ āĻāĻĒāĻ¯āĻ°ā§āĻā§āĻ¤ āĻāĻŋāĻˇā§ āĻāĻŋāĻ¯āĻŋāĻāĻ¨ā§ āĻāĻ¯āĻ°āĻāĻŋāĻ āĻĒāĻā§āĻˇāĻ¯āĻĻāĻ° āĻŋāĻā§āĻ¤āĻŋāĻ¯ āĻļā§āĻ¯āĻ¨ āĻ¸āĻ āĻŋāĻ āĻāĻ¸ā§ā§āĻ¯ā§ āĻāĻĒāĻāĻ¨āĻ¤ āĻšāĻā§ā§ā§¤ āĻļā§āĻ§ā§āĻŽā§āĻ¤ā§āĻ° āĻāĻā§āĻšā§āĻ¯āĻ°
āĻ¨ā§āĻŽ āĻāĻ¯ā§āĻŋ āĻĨā§āĻāĻ¯āĻ˛ āĻāĻŋāĻ āĻāĻ¸ā§āĻŽā§āĻ° āĻāĻŋāĻ°ā§ā§ā§āĻ¯ā§ āĻĒā§āĻāĻ˛āĻļ āĻ āĻāĻŋāĻ¯ ā§āĻ āĻĒāĻ¤ā§āĻ° āĻĻā§āĻāĻŋāĻ˛ āĻāĻ°āĻ¯āĻ˛ āĻŋā§ āĻ āĻāĻŋāĻ¯ ā§āĻ¯āĻāĻ° āĻĻāĻ°āĻŋā§āĻ¯āĻ¸ā§āĻ¤ āĻāĻ¸ā§āĻŽā§āĻ° āĻ¨ā§āĻŽ
āĻāĻ¯ā§āĻŋ āĻĨā§āĻāĻ¯āĻ˛āĻ āĻ¤ā§āĻ° āĻāĻŋāĻ°ā§āĻ¯ā§ ā§āĻāĻŋāĻ āĻŋā§āĻ¯āĻŋ āĻ āĻāĻŋāĻ¯ ā§āĻ āĻāĻ āĻ¨ āĻāĻ°ā§ āĻ¸āĻāĻŽāĻā§āĻ¨ āĻ¨ā§ā§¤
Public Interest litigation
Kazi Mukhlesur Rahman Vs. Bangladesh and others 26 DLR(SC) 44
The fact of this case was as follows :
On May 16 1974, the Prime Minister of Bangladesh and India Signed a treaty in Delhi providing inter alia
that India will retain the southern half of southern Berubari Union No. 12 and the adjacent enclaves and in
exchange Bangladeh will retain the Dahagram and Andorpota enclaves. This treaty was challenged on the
ground that the agreement involves cession of territory and was entered into without lawful authority by
the executive head of government. The petitioner Kazi Mukhlesur Rahman was an advocate and came to
the court as a citizen and as such his standing was in question. Locus Standi was granted by Sayeem CJ
on the ground that Mr. Rahman agitated a question affecting a constitutional issue of grave importance
posing a threat to his fundamental rights that pervade and extend to the entire territory of Bangladesh. The
court decided that the question is not whether the court has jurisdiction but whether the petitioner is
competent to claim a hearing. So the question is in each case. The application, however, was rejected on
the ground of being pre-mature. But since the court observed that a cession of territory needs
parliamentary approval and enactment, the Government soon proceed with the third amendment of the
Constitution.
Adverse possession
Nehal Uddin vs. Amena Khatum[43 DLR 492]
Question of acquisition of title by adverse possession -
possession under a mistake or invalid title is as effective as that of a trespasser and in the case of a claim
of title by adverse possession by co-sharer against another co-sharer,ouster of the latter has to be proved
and possession of the party claiming title by adverse possession must be actual and exclusive for a
continuous period of more than 12 years in assertion of hostile title.
10. Chowdhury Mahmood Hasan and others vs.Bangladesh and others[54 DLR 537]
A person not personally aggrieved may also come if his heart bleeds for his less fortune fellow for any
wrong done by the Government when an action concerns public wrong or invasion on the fundamental
rights of indeterminate number of people, any number of the public suffering the common injury has right
to invoke the writ jurisdiction.
10 BLD (AD) 168
Business transaction between parties- civil liability no basis of criminal proceedings- civil claims not to
be brought in criminal courts as a contrivance to put pressure for re-payment of dues-civil claims to be
settled and sorted out in civil court- to hold otherwise is to ignore the realities of business transaction and
to encourage civil claims to be brought into criminal court.
[AIR 1942 Cal 79]
The object of Section 195 of Cr.p.c is to prevent improper or reckless prosecution by private persons for
offences in connection with the administration of public justice and those relating to the contempt of
lawful authority of a public servant.
WAR CRIMES
AC of the ICTY srtated in Tadic case:
i) war crimes must consists of a serious infringement of an international rule, that is to say must involve
grave consequences for the victim; ii) the rule violated must either belong to the corpus of customary law
or be part of an applicable treaty; and iii) the violation must entail, under customary or conventional law,
the individual criminal responsibility of the person breach the rule.
[Bander Ali vs. state 40 DLR (AD) 200]
In the case of culpable homicide the intention or knowledge is not so positive or definite. The injury
caused may or may not cause the death of the victim. To find that the offender is guilty of murder, it must
be held that his case falls within any of the four clauses of section 300, otherwise he will be guilty of
culpable homicide not amounting to murder. Facts of the case show that death was caused without
premeditation.
42 DLR (AD) 31 [ Shah Alamvs. The State]
A FIR May be lodged by any person for it is meant just to set the machinery of law in action.
1980 Pak.Criminal law Journal 345 [ Md. Hanif vs. the State]
FIR- Delay not explained Satisfactory Held-always fatal to Prosecution.
51 DLR (AD) 22
Section 169 of the Cr.p.c has not given the police officer any power to judge the credibility of the
witnesses and to decide the defence plea of alibi
Sufia KhanamVS Faizunnnessa 39 DLR (AD) 46
If a personâs right and title is clouded by an instrument he may seek a declaration u/s
42 to nullify the effect of such an instrument. A suit for declaration that a deed
whether a sale deed or decree is void comes u/s 39 of the SR Act in terms of this
section But when further prayer is added that by the said deed plaintiffâs right is not
affected. This falls under section 42 â If his suit included the reliefs that the
instrument is question is void and his right has not been affected thereby and or the
11. defendant acquired no right thereby, then the reliefs are covered by both sections 39
and 42.
Sufia KhanamVS Faizunnnessa 39 DLR (AD) 46
A written instrument when is adjudged void, need not be cancelled â plaintiff should
also seek the additional relief by way of setting aside the decree or cancelling the
deed â Suit for mere declaration that an instrument is void, maintainable without a
prayer for its cancellation â Relief by declaration of nullity of any written instrument
and also relief by cancellation of the instrument provided in section 39 , section 42
does not specifically provide for declaration of nullity of any written instrument;
nevertheless a decree for nullity of an instrument in view of the general provision
therein comes under section 42.
Mirza Akbar v.Emperor, [AIR 1940 PC 176]
The words âcommon intentionâ signify a common intention existing at the time when the thing was said,
done or written by the one of them. It had noting to do with carrying the conspiracy into effect.
JayendraSaraswatiSwamigal v. State of Tamil Nadu,[AIR 2005 SC 716]
If prima facie evidence of existence of a conspiracy is given and accepted,the evidence of acts and
statements made by anyone of the conspirators in furtherance of the common object is admissible against
all.
Distinction between appeal and revision regarding CPC
An appeal is a continuation of the original proceeding. [F.A Khan v. Pakistan, 16 DLR (SC) 405] in effect
the entire proceedings are before the appellate authority which has power to review the evidence subject
to the statutory limitations prescribed. But in a revision, the revisional authority has no power to review
the evidence unless the finding of fact of the lower court suffers from legal infirmities(S-115).
Meaning ofSHALL (Black's LawDictionary)
As used in statutes and similar instruments, this word is generally imperative or mandatory; but it may be
construed as merely permissive or directory, (as equivalent to "may,") to carry out the legislative intention
and In cases where no right or benefit to any one depends on its being taken in the imperative sense,and
where no public or private right is impaired by its interpretation in the other sense. Also, as against the
government, "shall" is to be construed as "may," unless a contrary intention is manifest. See Wheeler v.
Chicago, 24 111. 105, 76 Am. Dec. 736; People v. Chicago Sanitary Dist., 184 111. 597, 56 N. E. 9.".:;:
Madison v. Daley (C. C.) 58 Fed. 753.
Examination of the Complainant is mandatory
37 DLR 227
Examination of the complainant on oath when taking cognizance of an offence U/S 200 Cr.p.c mandatory.
Failure to do so renders the proceeding liable to be quashed.
37 DLR 223
Failure to examine the complainant is an irregularity, not an illegality.
12. "Groundless"
11 BLD(AD) 110
"Groundless" appearing in both the sections 141A and former section 253, means that the materials
produced before the Magistrate against the accused are either so frivolous, absurd or insufficient that no
useful purpose would be served by framing a charge against the accused.
Mandatory and directory provision
[Kazi Mamunur Rashid v.Bangladesh, 16 BLT 119]
Having regard to the fact that no consequence was provided for the failure to hold parliamentary election
within ninety days of the dissolution of parliament, the time limit prescribed has been held to be directory.
[Sultana Kamalv. Bangladesh, 14 BLC 141]
Generally when no consequence is provided for non-compliance, the provision is held directory.
15 DLR 702
A Magistrate acting Under Section 144 has no business to adjudicate upon any question of title or
possession. The only question before him is whether a breach of the peace is imminent and to make an
order with the object of preventing breach of the peace.
Approver [38 Cr.LJ 852]
Once the approver has accepted a tender of pardon he stands on the same footing as any other witness
with the exception that he is liable to forfeit his tender of pardon if he does not comply with the
conditions on which the tender was made. He may be examined like other witnesses. Confession made by
the approvers are not substantive evidence but may be used only for the purpose of contradicting or
corroborating their depositions in court.
19 BLT 388 [Court is not an arbitrator]
It is held that imposing of condition in granting bail is not sustainable in the eye of law. The learned judge
in rejecting the prayer for bail in this case has forgotten her basic principle that she is bound to dispense
justice in accordance with law and a judge cannot be a arbitrator while dispensing justice.
14 DLR 355 [ Inherent power ofthe court]
Absence of any specific provisions in the code, court has the power to pass necessary orders for ends of
justice.
55 DLR (AD) 131 [Monsur Ali Vs State]
A fugitive has no right to seek any kind of redress as against his grievance, if any, against the judgment
and order of a court convicting him to imprisonment.
5 MLR 334 (HC) [MOBARAK HOSSAIN (MD).@JEWEL VS. THE STATE]
Supply of copy of statement recorded U/S 164 before filing charge sheet is not permissible-statement of
accused recorded under section 164 Cr.p.c. by a Magistrate is a public document within the meaning of
section 74 of the Evidence Act, 1872. An accused is not entitled to get copy of such statement during
investigation before filing charge-sheet under section 173 Cr.p.c.
13. 49 DLR (AD ) 132
There is nothing in law precluding a criminal case on account of civil suit pending against the petitioners
on the same facts. The criminal case stands for the offence, while the civil suit is for realization of money.
Both can stand together.
"Precedent"
[56 DLR 265]
It is basic to the rule of precedent that if a later judgement of an apex court particularly when given
without considering or noticing its earlier decisions on the same issue or point, and comes in conflict or at
variance with its earlier ones, such judgement however latest in time, loses its binding element for being a
judgement made per incuriam.
RudulSah v. State of Bihar, (1983) 4 SCC 141
Nature of the Case:
RudulSahâs case was a public interest litigation (PIL) case filed in the Supreme Court under Article 32 of
the Indian Constitution (whereby one can directly approach the Supreme Court when fundamental rights
have been infringed upon). The petition sought the release of RudulSah from illegal detention, and also
ancillary relief such as rehabilitation and compensation.
Summary:
RudulSah was arrested in 1953 on charges of murdering his wife. He was acquitted by an Additional
Sessions Judge, in 1968, who directed his release from jail, pending further orders. RudulSah languished
in jail for 14 years after his acquittal, until his plight was highlighted in the media in 1982 and led to the
filing of the PIL on his behalf.
By the time the PIL came up for hearing in Court, RudulSah had been released. However,he sought
ancillary relief including payment for his rehabilitation, future medical expenses incurred, and
compensation for his illegal incarceration from the State. The Court directed the State to show cause for
the petitionerâs detention in relation to his ancillary claims, and received a much delayed response in
defence of the incarceration from a state jailor. The Court viewed the State response as a callous
afterthought with no true basis in fact and thus held that the petitionerâs detention was wholly unjustified.
Next, the Court examined whether, under its remedial powers it could adjudicate the petitionerâs claims
for ancillary relief. The Court reasoned that Article 21âs guarantee of the right to life and personal liberty
would be stripped of its significant content if the Court was limited to passing orders releasing individuals
illegally detained. The Court held that the âright to compensation is some palliative for the unlawful acts
of instrumentalities which act in
the name of public interest and which present for their protection the powers of the State as a shield.â
Accordingly, the Court ordered the State to pay 30,000 rupees to the petitioner as an interim measure, in
addition to the 5,000 already paid, noting that the judgment did not preclude the petitioner from bringing
future lawsuits against the State and its officials for appropriate damages relating to his unlawful
detention.
Enforcement of the Decision and Outcomes:
As regards enforcement of the decision, the judgment specified that the amount must be paid within two
weeks from the date of the decision. The Government of Bihar agreed to make the payment.
Significance of the Case:
RudulSahâs case is a landmark judgment in the jurisprudence of state liability. It is considered particularly
important as it led to the emergence of compensatory jurisprudence for the violation of fundamental rights
under the Constitution. It is noteworthy in this context that there is no express provision for awarding
compensation in the text of the Indian Constitution, and that this judgment was on the basis of the Courtâs
14. interpretation of the extent of its remedial powers. This was the first case since the inception of the
Supreme Court that awarded monetary compensation to a person for the violation of his fundamental
rights guaranteed under the Constitution. The grant of such monetary compensation was in addition, and
not to the exclusion, to the right of the aggrieved person to bring an action for damages in civil law or in
tort. Following this case,the Supreme Court awarded compensation in several cases. In the subsequent
early cases in which this remedy was considered, the Court held that compensation would be awarded
only in âappropriate casesâ which seemed to primarily involve life and liberty rights and were mostly
cases relating to illegal detention and unlawful deaths. Nonetheless, in later cases,it became clear that the
scope had become significantly wider. Since economic and social rights are often considered by the
Supreme Court under the ambit of Article 21 of the Constitution (the right to life which is a fundamental
right), compensation as a constitutional remedy may be available for violations of these rights. For
example, in the case PaschimBangaKhetSamity v State of West Bengal (1996 SCC(4)37), where the
Supreme Court uheld that the right to life included the right to health, compensation was granted by way
of redress with explicit reference to the RudulSah case.
Bail
[Abdul GafurSarder and Another Vs The State and Another]
35 DLR (AD) 279
Principle of granting bail though such granting is discretionary, should be equitably applied.
Section 164 ofCr.PC: Duties ofa Magistrate relating to recording a confessional statement.
[State Vs. Babul Miah, 63 DLR (AD) 10; 16 MLR (AD) 35; 8ADC 66]
Held: The act of recording confession is a very solemn act and in discharging his duties, the Magistrate
must take care to see that the requirements of sub-section (2) of section 164 are fully satisfied. It would,
of course, be necessary in every case to put question prescribed by the High Court Division circulars. No
element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the
confessional statement which the accused wants to make is in fact and in substance voluntary. The
provisions of sub section (3) of section 164 is mandatory and therefore he is required to fill up Column 7
of the form for recording confession which is a column for recording a brief statement of the Magistrateâs
reason for believing that the statement was voluntarily made. The question or questions, whatever the
form, must be designed to show whether the accused is making the statement voluntarily. The Magistrate
should be fully satisfied that the confessional statement is in fact and in substance voluntary.
Succession
Sheikh Ibrahimvs Nazma Begum[ 44 DLR (AD) 267]
The date of death of the daughter of the propositus, whether it was before or after the coming into force of
the ordinance, is immaterial. It is the date of opening of succession which is of material importance.
Section 39 ofContract Act : Effect ofrefusal ofparty to perform promise wholly_____
Where a person has by his conduct made it impossible for himself to perform the contract in its entirely
within a stipulated time the, the other side is entitled to put an end to the contract and no question of
damages arises. 1929 (All) 62
Section 498 of Cr.PC:The status of the applicant is not at all relevant in considering the application for
anticipatory bail.
15. [The State Vs. Md.Monirul Islamalias Nirab and others, 19 BLT (AD) 144; 16 MLR (AD) 301; 16 BLC
(AD) 53; 8 ADC 620]
Held: In this connection, we should all remember that the power to grant bail, an anticipatory one, should
not be exercised arbitrarily. This is an extraordinary relief and should be granted judiciously and sparingly
only in an exceptional circumstances and not otherwise. The status of the applicant or his high station of
life, affluence is not at all relevant in considering the application for anticipatory bail. But if there is
apprehension that granting of bail may impede public interest such as security of the State or hamper
investigation by the police, the application for bail should be refused.
Presumption ofMarriage
17 BLC (AD) (2012); 2012 BLD (AD) 32 [Mst. Momtaz Begumv AnowarHossain]
Even in the absence of formal proof of a valid marriage, a marriage can be presumed by evidence of
conduct and reputation, and the question of consummation forms often an important element in the status
of valid marriage. Where there has been prolonged and continuous cohabitation as husband and wife
although in the absence of direct proof, a presumption arises that there was a valid marriage.
Rights ofthe accused
38 DLR (AD) 311
Accused presumed to be innocent of the charge till guilty is established by legal evidence.
The Bangladesh Bar Council is a Statutory Autonomous Body of the Government constituted under the
Bangladesh Legal Practitioners and Bar Council Order,1972 (Presidentâs Order No. 46 of 1972). It
consists of 15 (fifteen) Members of whom the Attorney â General for Bangladesh is one and is the
Chairman ex-officio. Others are elected by Advocates for a term of 3 (three) years from amongst
themselves, of whom seven from General Seats and seven from seven Zonal or Group Seats. The elected
members, in their first meeting, elected from amongst themselves a vice-chairman and different standing
Committees, viz- Executive Committee, Finance Committee, Legal Education Committee etc. There is no
membership in the Bangladesh Bar Council. Bangladesh Bar Council is a licensing & regularity body for
all Advocates of Bangladesh.
"Lawyer's Certificate"
44 DLR (AD) 219
When a certificate from an advocate of a superior court is placed before a subordinate court conveying a
prohibitory order the latter should rather believe than doubt the authenticity of such communication.
Evidentiary value ofFIR- It can only be used for the purpose ofcorroborating or contradicting the
maker:
Held: An FIR being an early record and the first version conveyed to the police with the object of putting
the police in motion, is certainly an important document but by the same time, it may be remembered that
it can not be taken as evidence. It can only be used for the purpose of corroborating or contradicting the
maker. It is, therefore,not intended to be treated as the last word of the prosecution since the Code does
not provide that it must be made by an eye witness to the commission of the offence.
[Pulin Mahajan Vs. The State, 16 MLR (AD) 386;8 ADC 982]
16. Sufia KhanamVS Faizunnnessa 39 DLR (AD) 46
A written instrument when is adjudged void, need not be cancelled â plaintiff should
also seek the additional relief by way of setting aside the decree or cancelling the
deed â Suit for mere declaration that an instrument is void, maintainable without a
prayer for its cancellation â Relief by declaration of nullity of any written instrument
and also relief by cancellation of the instrument provided in section 39 , section 42
does not specifically provide for declaration of nullity of any written instrument;
nevertheless a decree for nullity of an instrument in view of the general provision
therein comes under section 42.
Where suit for cancellation is not necessary only declaration is enough for proper relief
Sufia KhanamVS Faizunnnessa 39 DLR (AD) 46
If a personâs right and title is clouded by an instrument he may seek a declaration u/s 42 to nullify the
effect of such an instrument. A suit for declaration that a deed whether a sale deed or decree is void
comes u/s 39 of the SR Act in terms of this section But when further prayer is added that by the said deed
plaintiffâs right is not affected. This falls under section 42 â If his suit included the reliefs that the
instrument is question is void and his right has not been affected thereby and or the defendant acquired no
right thereby, then the reliefs are covered by both sections 39 and 42.