This article is written by Mandira Patra, Heritage law college, 5th year BALLB student during on internship at Le Droit India.
Keywords
• Contracts
• Electronic Contracts
• E-Commerce
• compromise
• Promisor
• Agent
• Representative
• Damages
What is a Contract?
The Contract Act defines a contract as “an agreement enforced by law”. A compromise between two parties with obligations or duties that both parties must fulfill is called an agreement. When such an agreement is become legally binding, it is referred to as a contract.
Time and Place of Performance
Section (46-50): – Time and place for the performance of the contract under the Indian contract act-
The set of laws concerning the time and place for the performance of contact are contained in Sections 46 to 50 of the Indian Contract Act, 1872 which are following-
Section 46
Time for performance of promise, when no application is to be made and no time is specified. Where the day for performance is not specified in the contract and the promisor himself has to act upon the promisee without being asked (i.e. without any type of demand) by the promise the promise must be performed within a reasonable time. In this, the reasonable time is defined to be so much time as is required, compulsory, under the valid circumstances, to do conveniently what the contract or duty requires should be done in a particular case. Simply it means amount of time which is fairly necessary according to the contract
Section 47
Time and place for performance of promise, where time is specified and no application to be made. Where the time for performance of the contract is not specified in the contract and the promisor himself has to perform the promise without being asked or requested by the promisee (i.e. without any type of demand), the promise may be performed at any time during the usual hours of business on the specified day and at the place at which the promise ought to be performed and exact date which is specified by the promisee. Section 48
Application for performance on certain days to be at proper time and place. Where the day for the performance is specified in the contract and the promisor has to perform his duty only on being asked (i.e. any type of demand) by the promisee, then the promisee must first apply to the promisor (i.e. make a demand on the promisor) for the performance of the promise the duty of the promisee to apply for performance on that day. He must apply during usual business hours.
Section 49
A place for the performance of promise, where no application is to be made and no place is fixed for performance. Where the place for performance is not specified in the contract, and the promisor himself has to perform the promise without being asked or requested by the promisee, thus it is the duty of the promisor that he must contact the promisee to decide on a reasonable place for the performance of the promise.
Section 50
Performance in manner or at the time prescribed or sanctioned by the promisee. Section 50 of the Indian contract act deals with the manner and time for performance is prescribed by the promisee himself, the promise should be performed in the manner and at the time prescribed by the promisee. The promisor must perform his promise in any manner and at any time, being prescribed by the promisee.
Who Must Perform the Contract?
A contract can be fulfilled by the following parties:
The Promisor
Based on Section 40, if the contract shows or if the people involved think that a promise in it should be done by the one who made the promise, his legal helpers, or someone he has named as able, then that person, his legal aides, or the capable individual named by him must do the promise.
An Agent
An Agent, who is legally okay to act for anothe¬r person or group, can carry out the contract if it doesn’t have to be done in person. The one who made the promise or their agent can pick a capable person to complete the contract (Section 40, Para 2).
Legal Representative
In cases where the contract involves personal talent or personal considerations, it becomes void upon the promisor’s death. However, for other contracts, the legal representatives of a deceased promisor are obligated to fulfill them under Section 37, Paragraph 2.
Third Person
Section 41 states that if a promisee accepts the performance of a promise by a third party, they cannot subsequently enforce the promise against the original promisor.
Joint Promisors
Section 42:
In the case of joint promises, as per Section 42, all parties making the promise are collectively responsible for fulfilling it. This joint liability continues during their lifetimes and even after the death of the last survivor, the representatives of all are jointly bound to fulfill the promise.
Section 45:
Similarly, when a person has made a promise to two or more individuals jointly, the right to claim performance lies with them during their lifetimes and, after their demise, with the representatives of the deceased person jointly with the survivors. Following the death of the last survivor, the representatives of all are entitled to the claim jointly (Section 45).
Discharge of Contract by Performance:
When the parties to the contract perform their share of promises, the contract is said to be discharged. It is the natural mode of discharge. Performance may be Actual Performance under which all the parties perform their agreed share of promise. Attempted Performance (Tender or Offer of Performance) in which the promisor attempts to perform the promise, but the promise refuses to accept the same.
Performance of Contract by Joint Promisors- Joint promises may take any of the following shapes:
i. Where several joint promisor make a promise with a single promise, e.g. A, B C jointly promise to pay Rs.5,000 to D, or
ii. Where a single promisor makes a promise with several joint promises e.g. A promises to pay Rs.5000 to B and C jointly, or
iii. Where several joint promisor make a promise with several joint promises, e.g. A, B and C jointly promise to pay Rs.3000 to P, Q and R jointly.
Breach of Contract and Remedies
Breach of contract is defined as the violation of any terms and conditions that can bind a contract. There can be different reasons for breach such as late payments, a serious violation of any law or failure to deliver a particular asset.
If two parties are involved in a situation where a contract is required and in case one party is not able to fulfil those requirements then it is known as breach of contract. It can happen in both oral and written contracts. Several remedies for breach of contract are issued by the law that people can follow.
The Various Types of Breaches-
There can be different types of breach contracts such as material breaches, actual breaches, anticipatory breaches or a minor breach. All of them involve different conditions and address various issues. They are mentioned below:
Anticipatory: It involves anticipation by one of the involved parties, this type of breach may occur expressively or through the conduct. The concerned party will communicate that they are going to commit a breach.
Actual: In case one of the parties involved in the contract is not able to meet the requirements or refuses to abide by the conditions in the contract then it is formerly known as an actual breach of contract.
The Remedies For Breach Of Contract
There can be various remedies for breach of contract. They are mentioned below:
Suit for Rescission
When one of the involved parties breaches the contract then another party can choose to disobey conditions given in the contract. In case one of the parties participating in the contract does not obey the rules then it stands cancelled. The concerned parties can file a legal case for the damages that occurred. This suit is preferred to obtain damages that occurred and act as a remedy for breach of contract.
Suit for Injunction
When the court gives the restraining order, it is known as an injunction. The court can ask a person not to do a certain specific act. In case a person performs an act even after the injunction the aggrieved party can file a case for the injunction. The suit can be temporary or permanent depending upon the condition of the aggrieved parties.
Suit for performance
When the court gives a particular remedy for breach of contract to both the parties involved so that they can perform the activities according to the contract. Suit for performance is one of the most common suits.
Suit for the Quantum Meruit
Quantum Meruit is defined as those contracts signed for the reasonable values of services. When an employer hires a particular individual for an activity and if it is left incomplete or is not performed properly then the employer can file this suit. Additionally, the law also states that the employer must pay the employee the amount for the services performed. In case the employee is under the express contract for a certain specific amount then they cannot abandon the contract and the suit for the quantum meruit is applied.
Suit for damages
Ordinary damages: It occurs when the damages occur naturally through the breach.
Liquidated damages and penalties: In certain specific cases some contracts can address the breaching conditions and penalties related to it. If such contracts break then the party causing the breach must pay the amount mentioned in the contract to the other concerned party.
Special damages: The concerned party must prove that it loses according to the contract and claim the damages.
Nominal damages: It is a small remedy given in certain specific cases for the breach.
Vindictive damages: This breach addresses the mental and emotional suffering of the concerned party. Generally, legal procedures such as court may take care of these cases.
Introduction:
In Today’s Digital World, the traditional pen and paper contracts have now taken the form of the new age E-Contracts & Ecommerce. From the simple household gasoline form registration to the much- complicated patent registrations, everything is happening at the click of the mouse through E-Contracts. On the other hand, E-Commerce stands for electronic commerce. It means dealing in goods and services through the electronic media and internet. On the internet, it relates to a website of the vendor, who sells products or services directly to the customer from the portal using a digital shopping cart or digital shopping basket system and allows payment through credit card, debit card or EFT (Electronic fund transfer) payments.
What is an electronic contract (e-contract)
Section 2(h), of the Indian Contract Act, 1872, tells us that the term ‘contract’ is an agreement that is enforceable under the law. Interestingly, in the case of an E-Contract, the essence of Section 2(h) is still sustained by only tweaking the mode in which the Contract comes into existence.
Kinds of e-contracts
E-contracts are specific to the nature of the business. There are various types of E- Contracts executed depending on the structure of the business. The amalgamation of the conventional contracts with the proficiency of technology constitutes an E-Contract. Below are a few of the most common types of E-Contracts:
- Shrink Wrap Agreements
- Clickwrap Agreements
- Browse Wrap Agreements
- Scroll Wrap Agreements
- Sign-In Wrap Agreements
Examples of electronic contracts
Many different kinds of electronic contracts are used in business agreements. Well- executed online contracts combine the formality of a traditional contract with the ease of digital acceptance. The specific type of electronic contract your business should use will depend on the scenarios in which you’ll have to present agreements The following are a few of the most common types of electronic contracts:
• Browsewrap agreements
• Clickwrap agreements:
• Scrollwrap agreements:
• Sign-in wrap agreements:
• Electronic signatures
E-Commerce
The cutting edge for business today is e-commerce. E-commerce is not limited to the purchase of a product. It includes, besides e-mail and other communication platforms, all information or services that a company may offer to its customers over the Net, from pre-purchase information to after-sale service and support. There are essentially two major uses of e-commerce. The first is to use it to reduce transaction costs by increasing efficiency in the use of both time and procedures and thus lowering costs. The other is to use it both as a marketing tool to increase sales (and customer services) as well as to create new business through it—for example, Information Technology (IT) enabled business, call-centres, software and maintenance services, etc. as well as ‘digital commerce’. It is thus a tool for both existing businesses as well as an opportunity for new business, both for existing companies as well as for new entrants.
FACILITATORS OF E-COMMERCE
A. Information directories: The products and services are listed with appropriate subheadings to make it easy for a serious information-seeker to find what he wants. Allied services provided by them: Message boards, chat rooms, forums, etc.
B. Banks:
1) Net banking/phone banking: This is an online banking facility available for savings
account holders as well as current account holders. Some of the special Net banking services
are: Demat accounts for sale/purchase of stocks and shares, Foreign Exchange services,
Direct/Instant payment of bills on the account-holder’s behalf, Financial Planning & advice,
Electronic Funds Transfer, Loans to account-holders.
2) Credit/Debit Cards: Banks facilitate E-commerce by providing the most vital trade
instrument, namely the Credit or Debit Card, without which E-commerce would be
impossible.
Cases referred
• LIC of India v. Consumer Education and Research Centre, 1995 3 SCC 42.
• Societe Des Products Nestle S.A v. Essar Industries And Ors., 2006 (33) PTC 469 Del (India).
• State of Delhi v. Mohd. Afzal And Ors..
Conclusion
As the world is steadily moving toward complete digitalization and the idea of remate operations in all fields is quickly gaining momentum it can be safe to say that E-Contracts E-COMMERCE is the next potent revolution that in its stride is ready to completely take over the business field globally .
References
- Indian Contract Act,1872
- LIC of India v. Consumer Education and Research Centre, 1995 3 SCC 42.
- Societe Des Products Nestle S.A v. Essar Industries And Ors., 2006 (33) PTC 469 Del (India).
- State of Delhi v. Mohd. Afzal And Ors..
