Law of Torts James Rhodes v OPO [2015] UKSC 32, FIRAC January 11, 2022 Harsh Kataria Leave a comment James Rhodes v OPO [2015] UKSC 32 Court: Supreme Court of the United Kingdom. Argued: 19, 20 January 2015 Decided: 20 May 2015 Appellant– Hugh Tomlinson QC Matthew Nicklin QC Sara Mansoori Edward Craven (Instructed by Bindmans LLP) [1] Respondent– (OPO) Mathew Nicklin QC Adam Speker (Instructed by Aslam Charles Kousetta LLP) (Canongate Books Ltd) Antony White QC Jacob Dean[2] (Instructed by Simons Muirhead & Burton Solicitors) Interveners– (English PEN, Article 19 and Index on Censorship – Written Submissions Only) Adrienne Page QC Can Yeginsu (Instructed by Olswang LLP)[3] FACTS This case involved an autobiography written by a father, James Rhodes, involving sexual assault and his own psychosis. The mother, acting on behalf of the child (OPO), sued to obtain an injunction preventing publication of the autobiography, claiming that it would inflict extreme emotional distress on OPO were he to ever read it. The lower court dismissed the application on the basis that there was no cause of action in tort law. OPO appealed and the court of appeal held that “there was no claim in misuse of private information or in negligence, but that the claim for intentionally causing harm should go for trial.” The court of appeal granted an interim injunction on the basis that intention to cause harm could be imputed to Rhodes even if that intention was indirect, and a trial date was set. Rhodes appealed to the Supreme Court of the United Kingdom. ISSUE OF THE CASE This case expanded expression by denying an injunction to prohibit publication of an autobiography because of its potential effect on one potential reader. The Court also held that intent or malice could not be imputed to a speaker based on recklessness. The Supreme Court of the United Kingdom discharged the injunction preventing publication of Rhodes’ book, because an injunction will not be issued to prohibit the publishing of a book for the potential effect the book may have on one reader — this infringes too greatly on the freedom of speech of the author. RULE OF LAW The tort of intentionally causing physical or psychological harm was first established in 1897 in the case of Wilkinson v Downton. [4] Mr. Downton told Mrs Wilkinson (the wife of his pub landlord) that her husband had fractured his legs and had sent for help to get home. She suffered severe shock despite no previously known predisposition to this condition. Mrs Wilkinson was awarded damages on the basis that: she had a legal right to personal safety; Mr Downton had committed a wilful act; that act was “calculated” to cause physical harm to Mrs Wilkinson; there was no justification for the act; and Although there was no desire to cause the harm, the act was imputed in law as malicious. There are three key elements required for the tort of intentionally causing psychological harm[5]: A “conduct element”. This requires words or conduct to be directed towards the claimant for which there is no justification. The question of justification in this case was whether there was a “legitimate interest of the defendant in telling his story to the world at large in the way in which he wishes to tell it, and the corresponding interest of the public in hearing his story”[6]. The Court of Appeal had not applied the correct test because it had considered only whether the publication was justified vis-à-vis the son, rather than vis-à-vis the full potential readership of the book. The justification of the publication of the book on the basis of free speech is considered separately below. A “mental element”. The defendant need not intend to cause the psychological harm which resulted, it is sufficient if the defendant intended to cause severe distress. The Supreme Court has now made clear that intention for these purposes is actual intention inferred from the facts in the particular case. Recklessness is not sufficient. Previous authority had held that an intention could be imputed as a matter of law so that even if a defendant did not intend to cause such harm, an intention could be imputed to him if that was the likely consequence. However, the Supreme Court found that the “imputation of an intention by operation of a rule of law … has no proper role in the modern law of tort”[7]. James Rhodes did not have the necessary intention to cause severe distress to his son. A “consequence element”. It was accepted by the parties that physical harm or recognised psychiatric illness was the required consequence. (Lord Neuberger in fact suggested in what in this regard was a dissenting view that “it should be enough for the claimant to establish that he suffered significant distress as a result of the defendant’s statement”.) APPLCATION/ ANALYSIS OF THE CASE In the case of Rhodes v OPO, the Supreme Court considered the scope of this tort and whether it could ever be used to prevent a person from publishing true information about themselves.[8] The Supreme court of United Kingdom consider the domestic case law [31-67] and other common law authorities [68-71] in relation to the tort in Wilkinson v Downton. It consists of three elements: (1) a conduct element; (2) a mental element; and, (3) a consequence element. Only (1) and (2) are issues in this case. The conduct element requires words or conduct directed towards the claimant for which there was no justification or reasonable excuse, and the burden of proof is on the claimant. [9] In this case, there is every justification for the publication. The Father has the right to tell the world about his story. The law places a very high value on freedom of speech. The right to disclosure is not absolute because a person may, for example, owe a duty to treat information as confidential, but there is no general law prohibiting the publication of facts which will distress another person. It is hard to envisage any case where words which are not deceptive, threatening or (possibly) abusive could be actionable under the tort recognised in Wilkinson v Downton. In addition, the injunction – prohibiting graphic language – was wrong in principle and in form. The required mental element is an intention to cause physical harm or severe mental or emotional distress. Recklessness is not enough. CONCLUSION The Supreme Court of the United Kingdom noted that this case raised important questions concerning freedom of speech versus the limits of liability. The wilful infringement of the right to personal safety (by causing physical or psychological harm) has been recognized as a tort by the English courts and requires conduct, the proper mental state, and a resulting harm. The court of appeal ruled that the publishing of the book would be indirect conduct harming OPO, but the Supreme Court disagreed, stating that the “freedom to report the truth is a basic right to which the law gives a high level of protection.” Rhodes’ autobiography is addressed to the public at large, and does not specifically identify OPO, nor does the publication mention OPO besides in the dedication of the book. Further, “a right to convey information to the public carries with it a right to choose the language in which it is expressed in order to convey the information most effectively.” Therefore, the court of appeal erred in limiting the language that Rhodes could use in his autobiography. Next, the Court turned to the element of mental state. The court of appeal found that the necessary intention could be imputed to the father. The Supreme Court disagreed and set precedent by abolishing the imputed element of the tort of intentionally causing physical or psychological harm. The Court found that recklessness could not be included in the definition of the mental element of the tort because it would set too broad of a claim, allowing people far outside the scope of intended harm to sue for an imputed mental state. Therefore, the Court reversed the court of appeal and reinstated the ruling of the trial court, discharging the interim injunction and striking the tortious claim. [1] Judicial Committee of the privy council website (The Supreme Court of UK) [2] Ibid [3] ibid [4] https://www.carruthers-law.co.uk/news/james-rhodes-v-opo-by-his-litigation-friend-bhm-and-another-2015/ [5] http://ukscblog.com/case-comment-mla-v-opo-by-his-litigation-friend-bhm-and-another-2015-uksc-32/ [6] Supra note`1 [7] `Supra note 1 [8] https://www.supremecourt.uk/cases/docs/uksc-2014-0251 [9] ibid
Family Law SAME SEX INTIMATE PARTNERSHIPS AND THE LAW IN INDIA January 11, 2022 Harsh Kataria Leave a comment Introduction Since the ancient times, India has been the land of the most diverse demography possible. Individuals of various skin colors, cultures, religions, race, etc. have thrived in India since times immemorial. One such community which has always been a part of the society is the LGBTQ community that is the Lesbians, Gays, Bisexuals, Transgenders and Queers or the community of alternative sexual identities which is opposed to or different from the culturally and socially dominant sexual identities. The ancient Indian texts convey that the LGBTQ community had a relatively respectful position in the ancient Indian society. With the advent of the medieval times and the colonization of the country, the status of the LGBTQ community began degrading. Western influence led to the growth of adverse sentiments towards the LGBTQ and the introduction of certain draconian laws against the community. Moreover, the further lack of recognition by the law and society pushed the community into oblivion. Even after achieving independence from the British rule in 1947, such laws continued to a part of the Indian legal system. However in the current century, the Indian courts have propounded certain progressive judgments which have been instrumental in granting the community their fundamental rights. Laws on Homosexuality: The British Era The tolerance and acceptance towards homosexuality took a massive downfall with the advent of the British rule in India. It has been observed that in the seventy one countries where homosexual relations are illegal, more than half of it are previous British colonies.[1] Unlike in the Indian subcontinent, the strict Victorian laws prohibited homosexuality as it held that the sole purpose of any sexual activity was merely procreation and not pleasure.[2] In India, homophobia strengthened its roots after the stringent Victorian era laws clashed with the ancient and complex local cultural attitudes towards homosexuality.[3] “After the advent of British empire in India, a massive change in the attitude of the Indian society towards homosexuality was observed. From 1860 onwards, the British empire in all its colonies started to formulate such penal codes and common laws which criminalized homosexual relations.”[4] The non-recognition of consent under Section 377[5] left enough scope for the persecution of the community on the hands of the British authorities. Even after the independence of India in 1947, the provision was retained. “Section 377[6] became a part of the range of laws which were left by the British colonialists as a part of their legacy of repressive laws. Hence, it is the irony of the highest degree that the Britishers did away which the regressive laws on homosexuality much before us in the year 1967”.[7] Section 377 in the Independent India: Pre 1994 Era Since the independence in 1947, Section 377[8] had been always been under the public glare for a variety of reasons, by some for its regressive nature and by the other for its so-called role in maintaining the decorum and culture of the Indian society. It is interesting to note that since independence, conviction rate under Section 377[9] has been minuscule.[10] Rather, it has been used as a weapon for the harassment of the community and as a way of threatening them for extracting money. Though in an extremely suppressed manner, the voices against the provision were raised now and then. Queer Activism got popular in India in the 1970s. Fight Against Section 377: “Naz Foundation v Government of NCT of Delhi” Following 1994, the Naz Foundation (Trust) India filed a suit in the Delhi High Court contesting Section 377’s legality.[11] “The petition was dismissed by the Delhi High Court on the grounds that the petitioners lacked legal standing in the case.[12] The Naz Foundation subsequently brought the case to the SC, where it was determined that the Naz Foundation did indeed have standing to file a PIL in this instance, and the case was remanded to the High Court of Delhi..”[13] “In 2006, the National AIDS Control Organization filed an affidavit stating that the implementation of Section 377[14] meant the undue violation of the fundamental rights of the LGBT community”.[15] “Around the same time, ‘Voices Against 377’ which is a Delhi based coalition of LGBT people and women and human rights activists also intervened into the matter.”[16] “Upon hearing both parties’ evidence, the Delhi High Court ruled in Naz Foundation v Government of NCT of Delhi that Section 377 of the Indian Penal Code, inasmuch as it criminalizes consensual homosexual acts between adults, is in violation of Articles 14, 15, and 21 of the Constitution.”[17]. The judgment was significant as it granted the homosexuals their rightful place in the society and left no scope for any further unnecessary litigation on the issue.[18] The High Court making references to the highest international standards of equality brought in much appreciation from all quarters of the world and also motivated other countries to take similar steps.[19] The Fight After 2013: “Navtej Singh Johar vs Union of India” The retrograde reversal of the judgment in Naz Foundation case[20] created much uproar ultimately leading to the demand of reconsideration of the decision before a larger bench. “Mr Navtej Singh Johar, Sunil Mehra, Ritu Dalmia, Keshav Suri, and Ayesha Kapur filed a new writ suit in 2016 disputing the legality of Section 377.”[21] “Meanwhile in 2017, a 9 judge bench of the Supreme Court in Justice K.S. Puttaswamy vs Union of India[22] Article 21 of India’s Constitution, 1950, states that the right to privacy is inextricably linked to the right to life and personal liberty. The right to privacy and the protection of sexual orientation are at the core of fundamental rights under Article 14, Article 15, and Article 21 of the Indian Constitution of 1950, according to J Chandrachud.”[23]. This judgment laid down the jurisprudential basis of the Navtej Singh Johar case[24] and also brought in much relief for the LGBTQ community. “The hearing of the writ petition filed in 2016 began in 2018. Yet again the arguments of the petitioners were centered around Article 14, 15 and 21 of the Constitution. Section 377 as per the petitioner lacked the ‘intelligible differentia’ which is essential for proving constitutionality under Article 14”[25]. They contended that the provision is opposed to Article 15[26] as it restricts the homosexuals from being open and expressive about their sexuality[27] Section 377 of the IPC, 1860 clearly bereft the homosexuals from these rights.[28] “The petitioners also raised the concern that as an implication of the draconian Section 377[29] the homosexuals are largely unable to get proper medical care for themselves in case of sexually transmitted diseases”. “Meanwhile, all arguments of the respondents were centered around the contention that homosexuality was never a part of the Indian society and is opposed to its culture and decorum which is why such a piece of law is not unconstitutional”.[30] The respondents elaborated that it was also essential to criminalize consensual homosexual sex as consent can also be obtained using fraudulent ways.[31] “After examining the merits of the arguments made, the five judge bench in the present case of Navtej Singh Johar and Ors v Union of India[32]unanimously held that Section 377[33] is unconstitutional to the extent that it prohibits consensual sex between two homosexuals. Being the judgment pronounced by a 5 judge bench, it became a binding precedent for the courts in the Indian territory”[34]. This landmark judgment not only reinstated the rightful position of the LGBTQ community in the society but also elaborated on certain essential aspects of Constitutional jurisprudence mainly ‘Transformative Constitutionalism’ and ‘Constitutional morality’ which became a guiding light for future cases. ‘Transformative Constitutionalism’ is the ability of the constitution to adapt and transform itself as per the current times[35] and ‘Constitutional morality’ means the interpretation of the constitution and the laws of the country in consonance with its basic and core principles.[36] These principle puts the duty on the judiciary to uphold the supremacy of the Constitution.[37] Conclusion The landmark case of “Navtej Singh Johar v Union of India”[38]in its true sense ended a battle of rights and existence for the LGBTQ community which started in the courts way back in 1994. No doubt, the decision of the aforesaid case is a huge win for the community but it cannot be said that the it is all now a cakewalk for them. The mindset of the current society is unlike the ancient and medieval India where homosexuality was not looked down upon but was an accepted part of the society. However with the judgment, a large scale awareness on homosexuality has been spread which has definitely enabled the community to take a stand for themselves. Moreover, same sex marriages have not been yet recognized in India which means that though the homosexual couples might live together but they cannot marry which implies lack of rights on their partner’s properties, assets, right to adoption, etc. unlike the heterosexual couples. Much recently on 12th June, 2020, the Uttarakhand High Court explicitly recognized the ideas of live-in relationships and cohabitation for the homosexuals despite the legal non-existence of same sex marriages.[39] Such petitions and judgments make it clear that in the near future it is very much possible that the same sex marriages shall get recognition from the law of the land. Therefore, it won’t be wrong to remark that even after the striking down of Section 377,[40] much is left to be done so that homosexuals are able to lead a life like any other heterosexual couple. [1]Misha Ketchell , “How Britain’s colonial legacy still affects LGBT politics around the world”, The Conversation ( October 01, 2021 , 05:43 pm ) https://theconversation.com/how-britains-colonial-legacy-still-affects-lgbt-politics-around-the-world-95799 [2] Enze Hand and Joseph O’ Mahoney, “British Colonialism and the Criminalization of Homosexuality”, 27 Camb. Rev. Int. Aff. 268-288 (2014). [3]Ben Westcott , “The homophobic legacy of the British Empire”, CNN World (October 02, 2021 , 09:43 pm) https://edition.cnn.com/2018/09/11/asia/british-empire-lgbt-rights-section-377-intl/index.html [4]Ibid. [5]Ibid. [6]Ibid. [7]Chaitanya Kediyal,”Tracing the History of Section 377 of IPC”, Factly (October 03, 2021, 11:55 pm) https://factly.in/tracing-the-history-of-ipc-section-377/ [8]Supra note 16, pg 3. [9]Supra note 16, pg 3. [10]Alok Gupta, “Section 377 and the Dignity of Indian Homosexuals”, 41 EPW 4815-4823 (2006). [11]Supra note 27, pg 4. [12]Asmita Sahay,”Naz Foundation vs Government of NCT of Delhi and Ors”,Law Times Journal (October 13, 2021, 10:29 am) http://lawtimesjournal.in/naz-foundation-vs-government-of-nct-of-delhi-ors/ [13]Ibid. [14]Supra note 27, pg 4. [15]Naz Foundation v Government of NCT of Delhi, (2009) 111 DRJ 1 DB,pg 9. [16]Id. pg 11. [17] Ibid. [18]Supra note 30,pg 4. [19]Supra note 30,pg 4. [20]Supra note 44,pg 5. [21]The Indian Penal Code, 1860.\ [22](2017) 10 SCC 1. [23]Ibid. [24]Supra note 44, pg 5. [25]The Constitution of India,1950. [26]Ibid. [27]Navtej Singh Johar v Union of India, AIR 2018 SC 21,pg 6. [28]Supra note 56, pg 6. [29]The Indian Penal Code,1860. [30]Navtej Singh Johar v Union of India, AIR 2018 SC 21,pg 85. [31]Ibid. [32]Supra note 56, pg 5. [33] IPC,1860 [34] Supra 33. [35]Sakshi Tomar, “Case Comment: Navtej Singh Johar and Ors v Union of India”, Pen Acclaims ( October 14th , 2021 , 01:22 pm) http://www.penacclaims.com/wp-content/uploads/2019/02/Sakshi-Tomar.pdf [36]Shelal Lodhi Rajput, “Constitutional Law:Doctrine of Constitutional Morality”, LexLife India ( October 24th , 2021, 01:25 pm) https://lexlife.in/2020/05/14/constitutional-law-doctrine-of-constitutional-morality/ [37]Ibid. [38]Supra note 56, pg 6. [39]Aishwaraya Iyer, “Same-sex couples have got a right to live together, even if not competent to enter into wedlock: Uttarakhand HC”, Bar and Bench (October 24, 2021,07:35 pm) https://www.barandbench.com/news/litigation/same-sex-couples-have-got-a-right-to-live-together-even-if-not-competent-to-enter-into-wedlock-uttarakhand-hc [40]The Indian Penal Code, 1860
Contract Law Doctrine of Privity December 23, 2021 Harsh Kataria Leave a comment The interest of a third party in a contract is one of the most debated topics in the law of contracts, section 2(h) of the Indian Contract Act 1872, states that a contract is an agreement between two parties that is enforceable by law. The doctrine of privity in contract law lays emphasis on the involvement of a third-party or party stranger to the contract, it states that the party stranger to the contract cannot claim damages or impose obligations in a contract between two parties i.e. only the parties involved in the contract can only sue or claim damages in the case of breach of a contract. “Privity of contract[1]” was pronounced in the case of Tweddle v. Atkinson[2] , in this case the court stated that no stranger to the consideration has the authority to enforce a contract, even if it was established for his benefit. The court ruled that a promisee can’t sue unless the promise’s consideration has moved away from him. The above-mentioned case is equally applicable in the Indian courts, however, with time the courts in India have developed certain exceptions to this rule, there have been certain instances where a third party under a family agreement and other laws can sue or enforce his/rights claiming damages to a breach of contract. Decisions in favour of the doctrine: The Hon’ble Supreme court of India ruled in favour of the rule of the privity, stated in the aforementioned Atkinsons case[3] in the case of M.C. CHAKO v. State Bank of Travancore[4] it was observed whether the said charge was enforceable by the bank when it was not a party to the deed itself. The Hon’ble court held that the bank not being party to the said deed cannot enforce the covenants and that it was a settled law that a third party cannot enforce the terms of a contract. Similarly, in the case of Harman Singh v. Purbi Devi[5], it was held that the doctrine of the privity of contract creates vinculum juris personal to the parties of the contract, and hence no one except the parties to a contract are entitled under a contract. Hence yet again, eliminating the third party interest in a contract. On the contrary, there have been some cases where the High courts laid down the rule that the courts in India are not bound by the rule laid down in the case of Tweddle v. Atkinson[6]. In the case of M. Naicker v. M. Naicker[7] the Hon’ble High court of Madras observed that if the contract between the two parties is for the benefit of the third party, in such cases the third party is entitled to sue the party at fault. Thus the courts have instituted a number of exceptions in which the rule of privity of contract doesn’t restrict the parties stranger to the contract, from claiming damages in the contract made for his/her benefit. In the case of Raymond Woolen Mills Ltd. v. Coal India Ltd.[8] the court observed that over the years the aforesaid doctrine has gone through a series of changes, and therefore the principal as a beneficiary in a contract can commence a legal action without being a party to the contract itself. Certain exceptions to ‘The Doctrine Of Privity Of Contract’ were also stated in the recent judgment of Delhi High court in the case of Klans Mittelbachert v. East India Hotels Ltd.[9] where the Hon’ble High court explained the concept of ‘beneficiary[10]’ as an exception to the doctrine, i.e. a beneficiary to a contract can sue. Hence, it can be concluded that even if a person is absent from the consideration aspect of the contract can enforce the contract if he is a party to it. In India, the doctrine of privity of contract should be extricated from the rule that a stranger to consideration can sue. In simple words, the recent developments in the law have now enabled third parties to sue, in order to protect their personal interests under extraordinary circumstances. The developments adopted by the Indian judiciary have now eliminated the rigidity that was adopted from English law, making the state of law up to par. [1] Lilienthal, Jesse W. “Privity of Contract.” Harvard Law Review 1, no. 5 (1887): 226–32. https://doi.org/10.2307/1321337. [2] Tweddle v. Atkinson 30 LJ QB 218 [3] Supra [4] M.C. CHAKO v. State Bank of Travancore AIR 1969 SC 504 [5] Harman Singh v. Purbi Devi AIR 2000 HP 108 [6] Supra [7] M. Naicker v. M. Naicker AIR 1928 Mad 33 [8] Raymond Woolen Mills Ltd. v. Coal India Ltd. AIR 1998 Cal [9] Klans Mittelbachert v. East India Hotels Ltd. AIR 1997 Del. 230 [10] Ibid
Contract Law Doctrine of Frustration December 23, 2021 Harsh Kataria Leave a comment The doctrine of frustration was originated from the Roman Contract Law. The doctrine comes into play when the parties are emitted when the sole purpose of the contract becomes unachievable. In such scenarios, courts can give relief on the grounds of succeeding impossibility if the entire purpose of the contract was frustrated by the occurrence of unforeseeable events (That were not looked upon by the parties, during the commencement of the contract). This was sourced in the English law after the case of Taylor v. Caldwel[1], where an opera house that was rented for concerts was destroyed by fire (none of the parties were responsible for the event), making the contract frustrated. The effect of force majure and this doctrine is that it ends up relieving the parties from further performance of the contract. Force Majeure in Indian Law: The doctrine of frustration can be seen in Section 56 of the Indian Contract Act 1872, Agreement to do impossible act – void in itself. It frees the parties involved in the contract from contractual obligation when the circumstances are seen to be beyond the control of the parties involved. The Supreme Court pointed out that relief cannot the availed by the defendant when the contract is breached due to their own actions or decisions, but once it is established the onus probandi stands dispensed for the specific period of force majeure. In the case of Dhanrajamal Gobindram vs Shamji Kalidas And Co[2]., the Hon’ble court gave an analysis of the prior verdicts on “force majure” and held that in the references made in this account the intention is to save the parties from the consequences of something that they did not cause or had no control over. This is the widest meaning of this doctrine. It is obvious that the condition about force majure in the agreement was not indistinct. The use of the word “usual” is what makes the difference which was in contemplation of parties. In the case of Sushila Devi vs Hari Singh.[3], judgment expanded upon the scope of the doctrine of frustration, ‘impossibility’ under section 56 of the Indian Contracts Act, 1872 should not merely cover the incidents caused by humans. In this case, the lease of the property itself was the subject matter of the agreement. Later after the events of partition, a part of the same property became a part of Pakistan, hence making the terms of the agreement unattainable. Similarly, in the case of Alopi Parshad & Sons Ltd. v. Union of India[4], the Supreme Court pointed that The Act does not allow a contracting party to reject the contract’s specific covenants and demand payment of consideration for contract performance at rates other than the set rates based on a vague claim of equity. Parties to an executable contract are frequently confronted with unforeseen events during the course of carrying it out, such as a fully anomalous spike or fall in pricing that creates an unexpected impediment to execution. This does not, by itself, negate the agreement they previously reached. Over a period of time, the court has identified certain instances where the doctrine of frustration can be claimed, such instances are: In the case of non-occurrence of an event, where it was unforeseeable or could not have been determined and makes the entire purpose behind the contract is unachievable. Destruction of subject matter can also be a case where the given doctrine can be applied. [Taylor vs Cadwel][5] A contractual agreement will frustrate when the occurrence of a certain situation makes the contract impossible to achieve. [Pameshwari Das Mehra v Ram Chand Om Prakash[6]] In the event of war The contract will be frustrated in the case of a legislative action that affects the working or the motive of the very contract. In the case where the fulfillment or functioning of a contract depends upon the promisor, his death or debility will result in the termination of the contract. Conclusion The law is dynamic and takes shape according to the needs of the society, the purpose of the doctrine is to deal with certain situations where the fulfillment of the contract is effected without the fault of the parties. It brings lucidity in the situations or cases where there is a conflict between the principle of absolute liability and the principle that a contract is discharged when the ‘common purpose[7]’ has been abolished due to the change of circumstances. [1] Taylor v Cladwel EWHC QB J1, (1863) 3 B & S 826, 122 ER 309 [2] Dhanrajamal Gobindram vs Shamji Kalidas And Co., AIR 1961 SC 1285 [3] Sushila Devi vs Hari Singh., 1971 AIR 1756, 1971 SCR 671 [4] Alopi Parshad & Sons Ltd. v. Union of India, 1960 (2) SCR 793 [5] Taylor v Cladwel EWHC QB J1, (1863) 3 B & S 826, 122 ER 309 [6] Parmeshwari Das Mehra And Sons vs Firm Ram Chand Om Prakash And Anr. 1951 AIR 1952 P H 34 [7] Smit, Hans. “Frustration of Contract: A Comparative Attempt at Consolidation.” Columbia Law Review 58, no. 3 (1958): 287–315. https://doi.org/10.2307/1119665.
Contract Law Minor’s Contract Capacity December 23, 2021 Harsh Kataria Leave a comment A minor as laid down in law is a person that is not at the age majority, which is differentiated based upon the circumstances and the law of the land. In India, with accordance to the Hindu Marriage act the age of majority of boys is 21 years and girls is 18 years, Indian Contact Act, governs the age of minority as anyone under the age of 18 years. In certain cases until age of 21 years is attained the person is treated as a minor. With accordance ti Section 11, a minor is not competent to enter a contract, and the contract is void ab intio, such contracts cannot be enforced. In the case of Mohori Bibi v Dhurniodas Ghose, it was held with the accordance of Section 11 of the Indian Contract Act, a minor cannot make a contract based upon the regulations based upon in the act. Since a child may have poor judgement due to his own ignorance or lack of maturity or may be influenced by others and might not be able to take best judgments in his interest. Do Minor Contracts have to be Void ab Initio In the case of Srikakulam Subramanyam v Kurra Subba Rao, it was held that mother as the primary guardian, can for the benefit of the minor, enter into a contract upon his behalf and the contract will be upheld. Chief Justice Beaumont, stated that if a minor has fraudulently misrepresented his age, and induces the other to enter a contract, th minor is not estopped from infancy. A minor’s contract is devoid from all legality, since he is incapable to give consent. Even if tort is directly connected to a contract, even then as held by the Calcutta High Court the minor is not liable. An exception to section, is based upon necessity, a minor is allowed to enter a contract if it is understood that it id taken in his welfare, an instance can be in the case of Raj Rani v Prem Adib, where the minor has given consideration under a contract the defendant was liable to perform hs obligations, to be compelled to safeguard the minor’s welfare. In the cases of contracts for marriage of a minor, the prima facie is taken as the benefit for them, In the case of Tulshiram v Roopchand, if the minor upon the date of her marriage is of the majority age, ten the marriage contract is enforceable in the eye of law. While in the case of marriage to a muslim minor female, as pointed in the case of Kumari Sahnoor Md Tahssen v State of UP, the female had not attained the age of majority and could hence be given in marriage only by the father or guardian, as followed under the Shariat Law, if the Kazi even after having the knowledge of facts validates such a contract, the marriage contract is not valid. If an infant is said to be providing for himself, as an instance in the case of Cowern v Nield, where the minor was a hay merchant, the court held that, the benefits of the infant have to be upheld, in cases where trade contracts are concerned since the minor is a primary party in it. A minor is under the law given an opportunity to retire from a contract incase he upon reaching the age of maturity, provided with reasonable exercise in reasonable time, does not deem fit that the contract is granted in his favour. In case of John Edwards and Henry Isaacs v Robert Brudnell Carter it was held by the council that repudiation coming after the term of five years of attaining maturity is not a reasonable time, and hence the now major minor cannot retire from the contract he was previously obliged under. Conclusion The law is developed to safeguard the welfare of minors and their position while forming agreements to enter into a contract, hence it is important to shield these welfare rights, where possible disadvantages can be faced by them due to the trajectory of their age. Cases where the minors welfare is being disrupted, the contact is considered to be void ab initio, to prevent any unwanted hardships upon the minor. However in cases such as Mathai Mathai case, a different approach by the court is taken, looking at the several present legal provisions to benefit the welfare of the child, excluding the contracts that arise out of necessity as benefactors to the minor.
Contract Law ‘Capacity’ to Contract December 23, 2021 Harsh Kataria Leave a comment ABSTRACT A person’s capacity to enter into a legal agreement or contract is referred to as their capacity to contract. The notion of capacity to contract is examined in this academic research, with a focus on the case “SURAJ NARAIN DUBE VS SUKH AHEER 1928”[1]. Using legislation this paper aims to provide a full grasp of the issue. This paper also discussed a minor’s ability to contract, and the consequences of doing so, as well as the significance of consideration in light of case law. Keywords – Consideration, Capacity to contract, Legal agreement, Minors’ contracts INTRODUCTION A contract[2] is the outcome of nearly every single transaction we see around us. You commit to giving the seller money in exchange for the food when you purchase food from him. If you own a store, you have agreements: one with the goods’ maker and another with the client who will purchase the goods from your store. While shopping for food, we may overlook if the seller is competent to engage in a deal. If you’re a retailer, though, you should double-check that the manufacturer is lawfully capable of doing the same. This is critical if you want to hold the manufacturer legally responsible for any defaults he makes during the period of the contract. Any agreement between two private entities that bind them to each other legally. A contract might be orally or in writing in nature. Verbal contracts, on the other hand, are more difficult to carry out and should be avoided wherever possible. First and foremost, one party makes an offer to another, and the acceptance of the offer by the person to whom it is made leads to a contract. “The Indian Contract Act of 1872 defines Contract as An arrangement binding by law under Section 2(h)”[3]. “In contract law, consideration is defined as the exchange of one thing of value for another”[4]. Every contract made with a minor, or someone under the age of 18, is null and void from the start because the minor is unable to sign it. “As in the instance in this case[5], a person took out a loan while he was still a minor, and after achieving a majority, he established a new agreement to repay the sum plus interest, but the contract was unenforceable since the consideration gained while he was still a minor was invalid”. CAPACITY TO CONTRACT Capacity to contract refers to the ability to lawfully enter into a contract. The capacity to contract ties the contracting parties with a vow to follow it. However, only a few people have the ability or competency to make a contract[6]. “Capacity is assessed by whether or not a person has achieved the age of majority and whether or not they are mentally competent of comprehending the contract conditions”[7]. These six elements must be included in any contract- Offer Acceptance Capacity Intent Consideration Legality CONSIDERATION’S THAT IS LAWFUL To make a contract formal and legitimate, consideration has to be given to it while establishing it. This is one of the three basic criteria, along with mutual assent and a legitimate offer and acceptance. The exchange of valuable goods/services is referred to as “consideration.” Two elements are necessary for a contract to be valid- a legitimate object and a lawful consideration[8]. As a result, the Indian Contract Act lays out the parameters that define such legitimate consideration & contract objects. Section 23[9] of the Indian Contract Act specifies that a contract’s consideration or object is valid consideration unless they are[10]– Is specifically prohibited by law Is of such a kind that it would contradict the purpose of the law Are deceptive Cause bodily harm or material damage to another person or property The courts have ruled that they are immoral. Against government policy. As a result, any of the foregoing cannot be included in a legitimate consideration or lawful object. SURAJ NARAIN DUBE V SUKHU AHEER AND ANR[11] Facts of the case- “In June 1919, the complainant, Suraj Narain, lent a sum of money to the respondent, Sukhu Ahir, who was a teenager at the time”[12]. In June 1923, the very first defendant, who had gained a majority at that time, executed a money bond in favor of the Complainant for the sum of Rs. 76 in consideration of the principal sum lent to the respondent when he was a minor, as well as the interest that had accumulated. The claimant filed a lawsuit in the Court of Small Matters in Jaunpur after the cash due to him was not paid. Issue- That whether sum loaned to a child Defendant was a due consideration for the later bond, or if the bond constituted invalid. Analysis- Within this case, a person borrows money once he was Minor and then makes a new guarantee to pay back the money plus interest after becoming an adult, but the contract does not work out since short-term consideration is not valid consideration. Judgment- The Court decided that Defendant failed to meet the contract’s competency conditions, that the subsequent bond is not a valid consideration, and that the contract is thus invalid because the previous bond was made by a minor. “The Allahabad High Court’s 3 benches confirmed the Court’s verdict, stating that the earlier contract failed Section 11 of the Indian Contract Act, Competency of Contract, because the respondent was a minor, and so the contract was void. Because of the last contract’s void status, the consideration was deemed inadequate for the contract, and the deal was declared void. And the appeal was dismissed along with the cost”[13]. MINORS ARE UNABLE TO ENTER INTO CONTRACTS It is obvious from “sections 10 and 11 of the Indian Contract Act that an individual who is incompetent to contract due to infancy cannot make a contract within the meaning of the Indian Contract Act”[14]. Case law- Mohari Bibee v. Dharmadas Ghose[15] The respondent in this case[16] was a minor who was the rightful owner of the property. His mother was the legal guardian of his children. He lied about his age to a stranger and mortgaged his home. His mother then clarified his status as a minority. However, once he reached the age of majority, that person attempted to enforce the mortgage deal. The High Court of Calcutta went on to rule that any contract made with a minor or a newborn is void from the start. As a result, they determined that the mortgage agreement was void due to the underage defendant’s signature. SUGGESTIONS Just like previously mentioned, today’s minors do tasks with the same capability as an adult. They are expected to be self-sufficient. Minors must leave their homes to pursue higher education and careers that will significantly benefit them. As a result, the Indian Contract Act’s rules for juveniles must be changed and updated to reflect the current generation. As we’re seeing, the Infants Relief Act attempted to change the normal law position by making all minor’s contracts void, except contracts for necessities, but the English courts upheld the custom-based law position, which they most likely believed to be realistic and successful. The current custom-based legal view on the validity of minors’ contracts builds on this pragmatic convention. There must be consistency in the meaning of’ minor’ across all Indian statutes. “According to the Indian Majority Act, the age of majority is 18 years old”[17]. Yet though, the president has not given his approval to this law. The minority must also be viewed as a form of protection, as it will shield minors from a variety of benefits that others may derive from them. Minors should not take advantage of their age disadvantage. As a consequence, the minor can take unfair advantage of the preceding section. This age factor should not be considered while making agreements. It must be based on the minor’s abilities. Minors are sometimes capable of accepting the notion of mutuality. Similar to the Companies Act of 2013, which allows minors to become shareholders, the Indian Contract Act must include provisions that allow minors to engage in contracts under the supervision of a guardian. CONCLUSION Everyone should be aware of the importance of contracting capacity. Even though the Indian Contracts Act explicitly outlines the regulations, they are dispersed throughout the Act. This document aims to give readers a better understanding of the subject by combining most of the provisions relating to contracting capacity. If the general public has a better comprehension of the concept, several needless clashes and misunderstandings can be avoided. Another benefit would be that the judiciary would be relieved of the responsibility of examining these issues. [1] Suraj Narain Dube vs Sukhu Aheer And Anr. on 6 July 1928 Indiankanoon.org, https://indiankanoon.org/doc/820475/ (last visited Sep 18, 2021) [2] The Indian Contract Act, 1872 [3] Ibid. [4] Ibid. [5] Supra note-1 [6] Supra note-3 [7] Ibid. [8] Supra note-5 [9] What considerations and objects are lawful, and what not | Indian Contract Act, 1872 | Bare Acts | Law Library | AdvocateKhoj Advocatekhoj.com, https://www.advocatekhoj.com/library/bareacts/indiancontract/23.php?Title=Indian%20Contract%20Act,%201872&STitle=What%20consideration%20and%20objects%20are%20lawful,%20and%20what%20not (last visited Sep 18, 2021) [10] , https://www.toppr.com/guides/business-laws/indian-contract-act-1872-part-ii/legality-of-object-and-consideration/ (last visited Sep 15, 2021) [11] AIR 1928 All 440 [12] Supra note-1 [13] Supra note-1 [14] Effects of an agreement entered into with a minor under Indian Contract Law iPleaders, https://blog.ipleaders.in/effect-of-minority-on-the-agreement/ (last visited Sep 17, 2021) [15] Mohori Bibee v. Dharmodas Ghose, [1903] 30 Cal. 539 [16] Mohori Bibee & anr. Vs. Dharmodas Ghose – Law Times Journal Law Times Journal, https://lawtimesjournal.in/mohori-bibee-anr-vs-dharmodas-ghose/ (last visited Sep 18, 2021) [17] The Majority Act Of 1875