144349710-all-contracts-are-agreement-but-all-agreement-are-not-contracts-latest-docx.docx 4m6r6r

All contracts are agreement but all agreement are not contracts Answer; A contract is a legally binding agreement or relationship that exists between two or more parties to do or abstain from performing certain acts. A contract can also be defined as a legally binding exchange of promises between two or more parties that the law will enforce. For a contract to be formed an offer made must backed acceptance of which there must be consideration. Both parties involved must intend to create legal relation on a lawful matter which must be entered into freely and should be possible to perform. An agreement is a form of cross reference between different parties, which may be written, oral and lies upon the honor of the parties for its fulfillment rather than being in any way enforceable. All contracts are agreement because there must be mutual understanding between two parties for a contract to be formed. All parties should agree and adhere to the and conditions of an offer. The following cases illustrate ways in which all contracts are agreements; In the case of invitation to treat, where an invitation to treat is merely an invitation to make an offer. When a firm's offer is accepted it results into a contract provided other elements of contracts are accepted. Considering person A buying a radio on hire purchase from person B who deals with electronics and its appliances. Both parties must come to an agreement on payment of monthly installment within specified period of time. Such an agreement result to specialty contract which a contract under seal. All contracts are agreement until avoided for example, avoidable contract where one of the parties can withdraw from it if s/he wishes. This occurs due to minor agreement and misrepresentation or undue influence. Considering a case where person A make contract with person B but during the contract period B realizes that he was engaged to perform an agreement under undue influence. Definition of contract According to section 2(h) of the Indian Contract Act: " An agreement enforceable by law is a contract." A contract therefore, is an agreement the object of which is to create a legal obligation i.e., a duty enforceable by law. From the above definition, we find that a contract essentially consists of two elements: (1) An agreement and (2) Legal obligation i.e., a duty enforceable by law. We shall now examine these elements detail. 1. Agreement. As per section 2 (e): " Every promise and every set of promises, forming the consideration for each other, is an agreement." Thus it is clear from this definition that a 'promise' is an agreement. What is a 'promise'? the answer to this question is contained in section

2 (b) which defines the term." When the person to whom the proposal is made signifies his assent thereto the proposal is said to be accepted. A proposal, when accepted, becomes a promise." An agreement, therefore, comes into existence only when one party makes a proposal or offer to the other party and that other party signifies his assent (i.e., gives his acceptance) thereto. In short, an agreement is the sum total of 'offer' and 'acceptance'. On analyzing the above definition the following characteristics of an agreement become evident: (a) At least two persons. There must be two or more persons to make an agreement because one person cannot inter into an agreement with himself. (b) Consensus-ad-idem. Both the parties to an agreement must agree about the subject matter of the agreement in the same sense and at the same time. 2. Legal obligation. As stated above, an agreement to become a contract must give rise to a legal obligation i.e., a duty enforceable by law. If an agreement is incapable of creating a duty enforceable by law. It is not a contract. Thus an agreement is a wider term than a contract. " All contracts are agreements but all agreements are not contracts," Agreements of moral, religious or social nature e.g., a promise to lunch together at a friend's house or to take a walk together are not contracts because they are not likely to create a duty enforceable by law for the simple reason that the parties never intended that they should be attended by legal consequences Essential Elements of a Valid Contract A contract has been defined in section 2(h) as "an agreement enforceable by law." To be enforceable by law, an agreement must possess the essential elements of a valid contract as contained in sections 10, 29 and 56. According to section 10, all agreements are contracts if they are made by the free consent of the parties, competent to contract, for a lawful consideration, with a lawful object, are not expressly declared by the Act to be void, and where necessary, satisfy the requirements of any law as to writing or attention or registration. As the details of these essentials form the subject matter of our subsequent chapters, we propose to discuss them in brief here. The essential elements of a valid contract are as follows. 1. Offer and acceptance. There must a 'lawful offer' and a 'lawful acceptance' of the offer, thus resulting in an agreement. The adjective 'lawful' implies that the offer and acceptance must satisfy the requirements of the contract act in relation thereto. 2. Intention to create legal relations. There must be an intention among the parties that the agreement should be attached by legal consequences and create legal obligations.

Agreements of a social or domestic nature do not contemplate legal relations, and as such they do not give rise to a contract. An agreement to dine at a friend's house in not an agreement intended to create legal relations and therefore is not a contract. Agreements between husband and wife also lack the intention to create legal relationship and thus do not result in contracts. 3. Lawful consideration. The third essential element of a valid contract is the presence of 'consideration'. Consideration has been defined as the price paid by one party for the promise of the other. An agreement is legally enforceable only when each of the parties to it gives something and gets something. The something given or obtained is the price for the promise and is called 'consideration' subject to certain exceptions; gratuitous promises are not enforceable at law. The 'consideration' may be an act (doing something) or forbearance (not doing something) or a promise to do or not to do something. It may be past, present or future. But only those considerations are valid which are 'lawful'. The consideration is 'lawful'. unless it is forbidden by law; or is of such a nature that, if permitted it would defeat The provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or is immoral; or is opposed to public policy (sec.23). 4. Capacity of parties. The parties to an agreement must be competent to contract. But the question that arises now is that what parties are competent and what are not. The contracting parties must be of the age of majority and of sound mind and must not be disqualified by any law to which they are subject (sec.11). If any of the parties to the agreement suffers form minority, lunacy, idiocy, drunkenness etc. The agreement is not enforceable at law, except in some special cases e.g., in the case of necessaries supplied to a minor or lunatic, the supplier of goods is entitled to be reimbursed from their estate (sec 68). 5. Free consent. Free consent of all the parties to an agreement is another essential element. This concept has two aspects.(1) consent should be made and (2) it should be free of any pressure or misunderstanding. 'Consent' means that the parties must have agreed upon the same thing in the same sense (sec. 13). There is absence of 'free consent,' if the agreement is induced by (i)coercion, (ii) undue influence, (iii) fraud, (iv) mis-representation, or (v) mistake (sec. 14). If the agreement is vitiated by any of the first four factors, the contract would be voidable and cannot be enforced by the party guilty of coercion, undue influence etc. The other party (i.e., the aggrieved party) can either reject the contract or accept it, subject to the rules laid down in the act. If the agreement is induced by mutual mistake which is material to the agreement, it would be void (sec. 20) 6. Lawful object. For the formation of a valid contract it is also necessary that the parties to an agreement must agree for a lawful object. The object for which the agreement has been entered into must not be fraudulent or illegal or immoral or opposed to public policy or must mot imply injury to the person or the other of the reasons mentioned above the agreement is void. Thus, when a landlord knowingly lets a house to a prostitute to carry on prostitution, he cannot recover the rent through a court of law or a contract for committing a murder is a void contract and unenforceable by law.

7. Writing and registration. According to the Indian contract Act, a contract to be valid, must be in writing and ed. For example, it requires that an agreement to pay a time barred debt must be in writing and an agreement to make a gift for natural love and affection must be in writing and ed to make the agreement enforceable by law which must be observed. 8. Certainty. Section 29 of the contract Act provides that " Agreements, the meaning of which is not certain or capable of being made certain, are void." In order to give rise to a valid contract the of the agreement must not be vague or uncertain. It must be possible to ascertain the meaning of the agreement, for otherwise, it cannot be enforced Illustration. A, agrees to sell B " a hundred ton of oil" there is nothing whatever to show what kind of oil was intended. The agreement is void for uncertainly. 9. Possibility of performance. Yet another essential feature of a valid contract is that it must be capable of performance. Section 56 lays down that "An agreement to do an act impossible in itself is void". If the act is impossible in itself, physically or legally, the agreement cannot be enforced at law. Illustration. A agrees with B, to discover treasure by magic. The agreement is not enforceable. 10. Not expressly declared void. The agreement must not have been expressly declared to be void under the Act. Sections 24-30 specify certain types of agreements that have been expressly declared to be void. For example, an agreement in restraint of marriage, an agreement in restraint of trade, and an agreement by way of wager have been expressly declared void under sections 26, 27 and 30 respectively. It is a valid and true statement. Before we can critically examine the statement, it is necessary to understand the meaning of agreement and contract. According to section 2(a) "every promise on every set of promises forming the consideration for each other an agreement. It is fact an agreement is a proposal and its acceptance, by which two or more person or parties promises to do abstain from doing an act. But a contract according to section 2(h) of the Indian Contract Act, "An agreement enforceable by law is a contract. It is clear these definitions that the there elements of a contract ore (a) Agreement Contractual Obligation (b) Enforceability by Law. For Example: X invites his friend to tea and the latter accepts the invitation. This is a social agreement not a contract because it does not imply any legal obligation. We can say that (a) All contracts are agreements, (b) But all agreements are not contracts. (A) All Contracts are Agreements For a Contract to be there an agreement is essential; without an agreement, there can be no contract. As the saying goes, "where there is smoke, there is fire; for without fire, there can be no

smoke". It could will be said, "where there is contract, there is agreement without an agreement there can be no contract". Just as a fire gives birth to smoke, in the same way, an agreement gives birth to a contract. Another essential element of a contract is the legal obligation for the parties to the contract, there are many agreements that do not entail any legal obligations. As such, these agreements cannot be called contracts. For Example: A gives his car to B for repair and B asks for Rs. 200 for the repair works. A agrees to pay the price and B agrees to repair the car. The agreement imposes an obligation on both. The third element of a contract is that the agreement must be enforceable by Law. If one party fails to keep his promise, the other has the right to go the court and force the defaulter to keep his promises. There are other elements are: 1. Offer and acceptance, 2. Legal obligation, 3. Lawful consideration, 4. Valid object, 5. Agreement not being declared void by Law, 6. Free consent, 7. Agreement being written and ed, 8. Capacity to contract, 9. Possibility of performance from what has been discussed. It is clear that all contracts are agreements. All Agreements are not Contracts : An agreement is termed a contract only when it is enforceable by law. All agreements are not necessarily legally enforceable. It can rightly be said that an agreement has a much wider scope than a contract. For example that agreements are not legally binding are an invitation to dinner or to go for a walk and its acceptance. These are agreements not contracts. An agreement does not necessarily imply a legal obligation on the parties to the agreement. It is import here to clarify what exactly is an obligation. Obligation is a legal tie which imposes upon a person or persons the necessity of doing or abstaining from doing definite act or acts. An agreement need not necessarily be within the framework of law and be legally enforceable. If it is, then it is a contract. A promises B to do physical harm to C whom, the latter does not like and B promises to pay A Rs. 1000 to do that, it cannot be termed as a contract because such an act would be against the law. Any agreement of which the object or consideration is unlawful is void and cannot be called a contract.

It would be clear from what has been said so far that an agreement has a much wider scope than a contract. An Agreement implies fulfilling some agreed condition. It does not necessarily imply that the stipulated conditions conform to the law and are enforceable by it. It may be said that an agreement is the genus of which contract is the species. It also makes it clear that all agreements are not contracts but all contracts are agreements. capacity to Contract - Any one cannot enter into a contract; he must be competent to contract according to the law. Every person is competent to contract if 1. 2. 3. 4.

He is of the age of majority He is of sound mind He is not disqualified from contracting by any law to which he is subject There may be a flow in the capacity of parties to the contract. It can be possible due to minority, lunacy,idiocy, drunk-ness, drug addition (unsound mind)

Capacity to contract means the legal competence of a person to enter into a valid contract. Usually the capacity to contract refers to the capacity to enter into a legal agreement and the competence to perform some act. The basic element to enter into a valid contract is that s/he much have a sound mind. Certain class of people are exempted from the category of people who are capable of entering into contract: 1. infants/minors; 2. insane; 3. people under the influence of drug; 4. bankrupt;and 5. enemy alien. Doctrine of the ultra-vires Any transaction which is outside the scope of the powers specified in the objects clause of the MA and are not reasonable incidentally or necessary to the attainment of objects is ultra-vires the company and therefore void. No rights and liabilities on the part of the company arise out of such transactions and it is a nullity even if every member agrees to it. Consequences of an ultra-vires transaction: 1. The company cannot sue any person for enforcement of any of its rights. 2. No person can sue the company for enforcement of its rights.

3. The directors of the company may be held personally liable to outsiders for an ultra vires. However, the doctrine of ultra-vires does not apply in the following cases: 1. If an act is ultra-vires of powers the directors but intra-vires of company, the company is liable. 2. If an act is ultra-vires the articles of the company but it is intra-vires of the memorandum, the articles can be altered to rectify the error. 3. If an act is within the powers of the company but is irregularly done, consent of the shareholders will validate it. 4. Where there is ultra-vires borrowing by the company or it obtains deliver of the property under an ultra-vires contract, then the third party has no claim against the company on the basis of the loan but he has right to follow his money or property if it exist as it is and obtain an injunction from the Court restraining the company from parting with it provided that he intervenes before is money spent on or the identity of the property is lost. 5. The lender of the money to a company under the ultra-vires contract has a right to make director personally liable. The term corporate veil is associated with an incorporated business body i.e. a Company. A corporate body has a distinct identity from its but it is simply legal fiction. In reality Individual/persons are the ones who run a company in hopes of acquiring benefits out of it. The word veil in its verb form means- to hide something or make it obscure in order to conceal. It might happen that some individuals indulge in fraudulent or unlawful practices in the garb of running a corporate body. To investigate the reality behind the window dressing, the courts might have to pull up the ‘veil’ and discover the true culprit. This is known has ‘lifting the Corporate Veil. Courts usually do not interfere in the affairs of those running the company. This has been made very clear in the case of Salomon v. Salomon where the court strictly adhered to the principal of separate legal entity and avoided lifting the veil. Process of imposing liability for corporate activity, in disregard of the corporate entity, on a person or entity other than the offending corporation itself. There are times when the court will ignore the corporate entity and strip the organizers and managers of the corporation of the limited liability that they usually enjoy. In doing so, the court is said to pierce the corporate veil.

Corporate Veil Definition¶ A corporate veil, defined as the structure which protects shareholders in a corporation from personal liability in the event of business failure or liability, is important to incorporated business

owners. Usually these shareholders are not responsible personally for any mistakes the business makes because it is a private, commercial entity. However, occasionally corporate veil piercing can occur and end with shareholders responsible for activities of the business. This is the essence of the corporate veil piercing definition; shareholders unprotected despite taking part in a limited liability legal structure.

Corporate Veil Explanation¶ A corporate veil, explained usually as the protection which does not exist in other unlimited liability business entities, is a risk mitigation tool. The benefit of choosing a corporation is the corporate veil doctrine; though owners pay the expense of corporate double-taxation they also receive the protection of incorporation. This benefit is recommended for anyone who can afford the price of incorporating a business. Many companies reduce additional costs of this by incorporating in Delaware. Laws here provide unique benefits to processing paperwork through this state. A corporate veil, however, is not fool-proof. This raises the question "how can the corporate veil be pierced"? The answer depends on a variety of factors but follows some generalities. Situations where a corporation exists as a shell, either for fraud, illegal activities, or violation of legal agreements, lifting the corporate veil can occur. In this situation the owners can be liable, for either prosecution or damages, as though they were acting outside of their corporation.

Corporate Veil Example Lenny is an owner of a business. After several years of operations, he has successfully grown his company. When an offer to sell the business comes in he is happy to take it. This will provide for an early retirement. To do this, Lenny must sign a non-compete agreement saying that he will not provide competition for the business he just sold. After a few months, Lenny feels bored. He enjoyed the constant problem solving associated with his business. Lenny decides to start again, the same type of business, because he has the expertise. This will prove to be a terrible mistake. Soon after starting the new company Lenny is sued for breech of contract. The new owners of his old business have noticed that, despite the contract, Lenny has started a competing business. The court sees that a corporate veil piercing occured; even though Lenny has incorporated the new business he will be tried as though he was a sole proprietor. Lenny, unfortunately, has committed corporate veil fraud. He will be punished for his actions. His patience would have suited him well here. Situations like this show piercing the corporate veil examples in the government. One must be careful to comply and avoid this mishap.

bailment Transfer of personal property by one party (the bailor) in the possession, but not ownership, of another party (the bailee) for a particular purpose. Such transfer is made under an express or implied contract (called bailment contract or contract of bailment) that the property will be redelivered to the bailor on completion of that purpose, provided the bailee has no lien on the goods (such as for non-payment of its charges). The bailee is under an obligation to take reasonable care of the property placed under its possession. Bailment contracts are a common occurrence in everyday life: giving clothes to a launderer, leaving car with an auto mechanic, handing over cash or other valuable to a bank, etc.

A sale involves transfer of ownership and physical transfer of property. Parties involved are called seller and buyer. The property is never taken back after transfer. Contract is over when buyer takes the possession of property after

Bailment involves physical transfer of property, ownership is not disturbed. Parties involved are called bailor and bailee. Property is taken back as per of bailment. Contract is not over when bailee takes the possession as the

payment.

property is to be returned back to the bailor.

We enter into various contracts so that we can carry on with our day to day activities. It is almost impossible to run a company or get a credit card without entering into some kind of a contract. In India, the formation and validation of a contract is governed by the Indian Contract Act, 1872.

Contract Act: What is Indemnity? As per Section 124 of the Indian Contract Act, the contract of indemnity is defined as, “a contract by which one party promises to save other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person.” Does this sound like a lot of mumbo jumbo? Well, this section is not so difficult to understand when you relate it to practical house. Suppose you are hired by a newspaper to write articles for them as a freelancer. Typically, your contract would have an indemnity clause so that if you write something against a very important person and that person files a suit against the newspaper for defamatory material, the newspaper can show the indemnity clause that you signed, protecting them from any form of loss caused due to your conduct. Then, the onus of fighting the defamation suit becomes your responsibility. That’s not all about the contract of indemnity as it is incorporated in most contracts, particularly in real estate purchase and bank loans. A person who promises to bear the loss is known as indemnifier and the person whose

loss is covered is known as indemnified. These types of contracts are mainly formed between insurance companies and their customers. Under Section 126, of the Act, a contract of guarantee is defined as, “a contract to perform the promise, or discharge the liability of a third person in case of his default.” This type of contract is formed mainly to facilitate borrowing and lending money. The three parties involved in this type of contract are:

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Surety: is the person by whom the guarantee is given

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Principal Debtor: is the person from whom the assurance is given.

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Creditor: is the person to whom the guarantee is given.

Contract Act: Differences between Contract of Indemnity and Guarantee A few important distinctions between a contract of indemnity and contract of guarantee are as follows:

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Number of Parties: In a contract of indemnity only two parties are involved, whereas in a contract of guarantee, three parties are involved.

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Purpose: A contract of indemnity is formed to provide compensation of loss. A contract of guarantee is formed to give assurance to the creditor in lieu for his money.

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Nature of Liability: In a contract of indemnity, the indemnifier is the sole person who is held liable. In a contract of guarantee, the liability is shared by the surety and principal debtor. The principal debtor owes the primary liability and the surety owes the secondary liability.

Final Legal Take Away Tip: In a contract of indemnity, the liability of the indemnifier arises only on occurrence of a loss or mishap. However, in a contract of guarantee, the liability is a fixed legal liability or debt, the execution of which is guaranteed by the surety.

In both the contracts, the motive is to insure a person against the probable loss out of the deal. But there are many points of distinction between the two which are explained below. (1) In a contract of indemnity, the liability of the indemnifier is primary in nature, while in a contract of guarantee the liability of the surety is secondary and arises only on the default of the principal debtor. (2) In a contract of indemnity there are two parties to the contract, viz., the indemnifier and the indemnity holder. In a contract of guarantee there are three parties, viz., the creditor, the principal debtor and the surety. (3) In a contract of indemnity, the liability of the indemnifier arises only on the happening o: – contingency whereas in the case of a contract of guarantee there is an existing debt or the performance of which is guaranteed by the surety.

(4) In a contract of guarantee where a surety discharges a debt payable by the principal debtor to the creditor, he on such payment can proceed against the principal debtor in his own right. But in the case of a contract of indemnity, the indemnifier cannot sue third parties in his own name, but must bring the suit in the name of the indemnified. (5) A contract of indemnity is for the reimbursement of a loss while a contract of guarantee is for the security of the creditor. (6)In the case of a contract of indemnity it is not necessary for the indemnifier to act at the request of the indemnified, whereas in the case of a contract of guarantee it is necessary that the surety should give the guarantee at the request of the debtor. (7)In a contract of indemnity there is only one original and independent contract between the indemnifier and indemnified whereas in a contract of guarantee there are three contracts. One between the creditor and the principal debtor, second between the creditor and the surety and the third between the surety and the principal debtor. (8) All parties in a contract of indemnity must be competent to contract. As a special case, when a minor is principal debtor, the contract of guarantee is still valid.