Factors Vititating Consent

Question 1

Undue influence intro

Answer 1

1. Sec 10, sec 14, sec 16
2. 2 essentials- in a position to dominate, uses this position to his advantage
3. Deemed to be in a position to dominate- real/apparent authority, fiduciary, when mental capacity of one affected

Question 2

2 categories for undue influence

Answer 2

1. No special relation- bop on the one who alleges
   Allacard vs skinner
2. Special relationship- ui presumed. Bop on the one who is in a position to dominate.

Ladley prasad vs karnal distillery

Pardanashin woman - UI presumed

Sec 19A - voidable

Note that if made in ordinary course of business and is to the disadvantage of one of the parties , need not be considered unconscionable in all cases

Question 3

Corercion vs undue influence

Answer 3

Both voidable and both vititates free consent

1. Physical force vs mental
2. No relationship between parties needed
3. Potentially criminal
4. Broader than english law
5. Bop

Question 4

An attempt to decieve which donot decieve is not fraud

Answer 4

1. An act done with the intent to decieve another - sec 17
2. Party decieved - acted upon false representation, got decieved, damnified

3 exp of Sec 19- not voidable if - means of discovering the truth with ordinary diligence,, fraud didn’t cause the consent

4 illustration - got to know still signed, other more relevant facts, didn’t know about the deceiving fact, you didn’t complete the contract

All above situation no fraud bcoz no deception

Illustration- 500 packet of milk. Check book. 400 . Still went ahead with contract. But if didn’t check book - voidable

Question 5

5 ingredients to constitute fraud under sec 17

Answer 5

1. Suggestion of false facts
2. Active Concealment
3. Making of a promise without intent to fulfill. Dda vs skipper company
4. Any other act fitted for decieve
5. declared fraud by special law - transfer of property act – latent material defect

Question 6

Silence is not fraud

Answer 6

Exp of sec 17 - passive concealement not fraud WHEN IT IS NOT DUTY TO DISCLOSE FACTS - srikirishna vs kurukshetra uni- kept silent wrt his attendance shortage -

But cases when silence is equivalent to fraud
1. Duty of promisor to speak - ubermmaie fidei, fiduciary relationship, custom of trade

2. Requires by law - transfer of property, companies act, marriage
3. half silence - bimlabai vs shankar lal
4. Silence equivalent to speech. B affirms “ Ok, I take your silence as yes “
5. Change of circumstances- before allotment of shares director changes

Question 7

Case for undue influence is a subtle species of fraud

Answer 7

Mehboob khan vs hakim abdul rahim

Whereby mastery is obtained over the mind of the victim through insidiois approach and seductive artifices

Question 8

Sec 18 misrepresentation

Answer 8

1. Unwarranted positive assertion - OCEAN STEAM NAVIGATION vs soonderdas - not more than 2800. Turned out to be greater than 3000
2. breach of duty
3. Causing mistake as to subject matter (farrand vs lazarus)

Question 9

Fraud vs misrepresentation

Answer 9

1. Intention to decieve vs bonafide
2. Ipc
3. Voidable + tort of deciet vs no

Both false statements, voidable

Derry vs peak - company prospects- steam powered trams though in reality approval pending with board ( mere formality) . Rejected. Shareholders sued for fraud.
Held. - case of misrepresentation not fraud

Question 10

For valid contract there must be consensus ad idem

Answer 10

Sec 13- same thing in same sense

Mistake - erroneous belief about something

1. No consesus ad idem
   Raffles vs wischelhaus - peerless ship
2. Mistake as to matter essential to agreement ( must be bilateral- sec 20)
   A. Existence
   B. Quantity
   C. Identity to parties - boulton vs Jones
3. Mistake as to law sec 21- ignorantia juris non excusat
4. Mistake as to foreign law

Question 11

Releif is unavailable for unilateral mistake

Answer 11

1. Sec 13, sec 20, sec 22
2. Voidable - only 20

Haji abdul rahman vs Persian steam navigation - 10th aug, 15th day of haj, 19th july
Rationale- UM, can’t be deemed to be known to the other party

Exceptions
1. Plea of non est factum - ( heavy onus on the person to prove - lack of consent , no lack of negligence ) foster vs Macmillan- boe thinking guarantee. Other knew

2. Identity of party- bolton vs jones
3. Fraud - dulari devi vs janardhanan- illiterate thinking gift for daughter. Later discovered 2nd to defraud her

Sec 65, 72 , 22 – relief unavailable in UM unless other party knew

Question 12

Exceptions to sec 26 restraint of marriage

Answer 12

SHRAVAN KUMAR vs NIRMALA

1. Hindu husband not to marry again when wife alive
2. Muslim husband- promising wife to divorce if he marries again
3. Restraint to marraige of minor
4. Life annuity to widow during her widowhood
5. Settlement in case of husband and wife - strained relationships

Question 13

Case for agreement in restraint of trade

Answer 13

Madhub chunder vs raj coomer - promises to pay the plaintiff all advances if he closes his business. Failed. Plaintiff cannot file a suit to recover the amount because agreement in restraint of trade

Question 14

4 exceptions to art 27 agreement in restraint of trade

Answer 14

1. Trade combination- FRASER vs BOMBAY ICE - agreement not to sell below stipulated price. Not restrained but regulated
2. Contracts of service - when under the employer. Reasonable. Routh vs Jones - 5years within 10 km radius
3. Sale of goodwill- benifit a business has in connection with its customers.
   Same trade. Within specified limit. As long as the buyer
4. Partners- eg: retiring partner not the same trade

Question 15

Impossible from beg

Answer 15

Sec 56-;terms of contract which are impossible – void.

1. Impossible from beginning
   a. When such acts are known to both parties - void abintio- life to dead body
   B. When not known to parties ( sec 20)
   Mistake of fact
   C. Legal impossibility- ex: bigamy

Rationale law doesn’t compel a man to do what he cannot possibly perform. Legal and physical. One party knew and still signed - compensate the other

Question 16

Supervening impossibility

Answer 16

Sec 56- promissory excused - known as DOCTRINE OF FRUSTRATION UNDER ENGLISH LAW

1. Core object destroy- Taylor vs caldwell
2. Core event - krell vs henry
3. .skill - painter dies
4. Change of circumstances- agreement to sell plot- sushila devi vs harisingh
5. Change of law- contracts for export of silver was deemed ,,,,
6. War

Question 17

Imossiblity is a rule and not excuse

Answer 17

1. Unexpected event or delays
2. Commercial impossibility due to failure of market : EASUN ENGG CASE - 400% escalation of prices owing to war
3. Failure of 3rd person
4. Strikes, lockouts, civil disturbance
5. one object failed. Contract based on several objects

Question 18

Which of the 2 innocent parties is to bear a lose caused by the fraud of a third . Cases

Answer 18

1. Phillips vs Brooke
2. Ingram vs little

Question 19

Situations when resititution is allowed in case of void contracts

Answer 19

1. Contract is unconstitutional ( article 299)
2. Bilateral mistake
3. Sec 29- uncertainty discovered later on
4. Agreement discovered to be champertous

Question 20

Agreement on restrain of legal proceeding

Answer 20

Sec 28

1. Void
   - absolutely prohibits
   - time limits
   - makes a party immune to any liablity

Case of HYMAN VS HYMAN - covenant in separation deed that wouldn’t apply for maintainence

2. Exceptions
   - arbitration - bcoz here the no absolute restraint. Tempropray stay until the arbitration panel ascertains the compensation ( Koelger vs coringa oil)
   - rt to appeal doesn’t come within this section
   - when 2 or more court have jurisdiction