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In India an unaccepted proposal creates no liability, even when made by deed?

The proposal (pollicitatio, Antrag), which when accepted becomes a promise, is either general or special. A general proposal (Auslobung) is one made to all those to whose knowledge it comes, as, for example, where a reward for lost property is offered by advertisement in a newspaper? In such case the proposal is accepted by performance of its conditions. A special proposal is one made to a person who in the first instance is ascertained.

The assent must unconditionally correspond with the proposal ; it must, in the words of the Act, be "absolute and unqualified.' Assenting to buy a horse for Rs. 500 is no acceptance of a proposal to sell the horse for Rs. 600.

Where the proposal prescribes no time for its acceptance, it remains for a reasonable time 4.

A proposal is revoked by the death or insanity of the proposer, if before accepting the acceptor knows of the death or insanity. In England the proposer's insanity does not in any case revoke the proposal; but his death does so, whether or not it comes to the acceptor's knowledge

Where the parties form their contract by correspondence, an acceptance is communicated, as against the proposer when it is posted or telegraphed?: as against the acceptor when it comes to the knowledge of the proposer. This rule enables an acceptor to revoke his acceptance under certain circumstances: if, for instance, he can anticipate the letter of acceptance by a telegram of revocation. But the position of the parties when a letter of acceptance is lost is a strange one.

The proposer is bound by an acceptance which he has not received, the acceptor is free from all liability under the contract. A revocation of a proposal despatched before the posting of the acceptance is in time even though it reaches the acceptor after he has posted the acceptance'. An acceptance may be revoked at any time before it comes to the knowledge of the proposer, therefore if the letter containing the acceptance is lost or delayed the acceptor may revoke. If the revocation of the

As to the English law, see Xenos 6 Dickinson v. Dodds, 2 Ch. D. 5. Wickham, L. R. 2 H. C. 296.

475, per Mellish L.J. Other such cases are the public

. Contract Act, sec. 4. offer of a prize, announcements in & This seems to be Lord Bramwell's railway time-tables, sales by auction, opinion in Household Fire etc. Co. Holland, Principles, 217.

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v. Grant, L. R. 4 Ex. D. 216.

• But see in England, Byrne v. Van Tienhoven, 5 C. P. D. 344.

Contract Act, sec. 8. ' Ibid. sec. 6, cl. 2.

6, cl. 4.

; Ibid, sec.

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acceptance is posted after but reaches the acceptor simultaneously with the acceptance, no contract seems to be formed '.

A contract is voidable at the option of the party disadvantaged by it when his consent has been caused by coercion,' undue influence,’ ‘fraud' or 'misrepresentation.'

· Coercion' is defined in the Contract Act, sec. 15, so as to include cases when the person coerced and the person coercing are strangers to the contract and unconnected with either of the parties.

• Undue influence' is defined in sec. 16. It consists in acts which, though not fraudulent, amount to an abuse of the power which circumstances have given to the will of one individual over that of another

• Fraud' is defined in sec. 17. As to this, it is to be remarked that the rhetorical phrases of a vendor are not necessarily fraudulent; that the contract is not voidable when the fraud did not cause the consent of the party on whom it was practised ? ; or when the fraud is fraudulent silence and the party deceived by it could, with ordinary diligence, have discovered the truth*; and that for the purpose of rendering the contract voidable the fraud of an agent is deemed the fraud of his principal, and fraud practised on an agent is deemed to be practised on his principal

* Misrepresentation' is defined by sec. 19. Here, too, the contract is not voidable when the misrepresentation did not cause the consent of the party to whom it was made or when the party to whom the misrepresentation was made could, with ordinary diligence, have discovered the truth. But nothing is said of misrepresentation by or to an agent.

The expression of an agreement may be by words or signs, or merely by a course of conduct, in which last case it is properly called an implied contract Under the Contract Act, sec. 9, when a proposal or acceptance is made by signs the promise is said to be implied.' But this is probably owing to a slip in drafting. The expression must be made by the parties to one another, but of course they may communicate by letter, telegraph, or agent.

· Dunmore v. Alexander, 9 Shaw & Dunlop, 190, cited by Holland, p. 220, note, where one lady wrote to another to engage a servant, and afterwards wrote not to do so, and the two letters were delivered, through the post

office simultaneously, to the servant.

2 Holland, p. 221.
3 Contract Act, sec. 19. Expl.
• Ibid. sec. 19, exception.
5 Ibid. sec. 17.
6 Holland, 222.

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The appointment of an agent requires no formality, and may be Contract implied from the acts of the principal', but not from mere necessity? by Agent. A person who at the time of forming the contract had no authority to act for another may be retrospectively made his agent by subsequent ratification. The authority of a special agent is limited to the doing of the particular act for which he is appointed and of every lawful thing necessary in order to do such act". The authority of a general agent-i.e. an agent who has authority to carry on a business", or whose authority is defined by his business cannot be limited by private prohibition from the principal, unless of course such prohibition is known to the party dealing with the agent. A contract made by an agent being the contract of his principal the agent alone can sue or be sued upon it. But to this rule there are three exceptions :

a. Where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad (i.e. out of British India).

b. When the agent does not disclose the name of his principal. c. When the principal, though disclosed, cannot be sued.

Where a man fraudulently represents that he is the agent of another, whereby a third party suffers loss, that party may sue the pretended agent either in tort? or on an implied warranty of his authority to bind his principal ®.

3. The matter agreed upon must be possible. This is provided for in the Contract Act, s. 56. It makes no difference whether or no the impossibility is known to the parties; and a thing is said to be impossible not only quod natura fieri non concedit (as in the case of an agreement to discover treasure by magic), but also if it be practically out of the question because it can only be accomplished at an unreasonable cost, or imports to have a legal effect unknown to the law 10. If the thing is possible at the date of the contract but afterwards becomes impossible, the contract becomes void ".

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3 Contract Act, sec. 196.
4 Ibid. sec. 188.
5 Ibid. sec. 188, par. 2.

as in the case of factors, brokers,
and partners.

? Randell v. Trimen, 18 C. B. 786.

8 Collen v. Wright, 7 E. & B. 301.

• See 5 All. 562 for a case of an agreement too uncertain to be enforced.

10 Holland, p. 224.
11 Contract Act, sec. 56.

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23 Ex. 268, where a railwaycompany was held not to be liable for the fees of a surgeon who had been called in by one of their stationmasters to attend to the sufferers from an accident.

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The matter agreed on must be lawful, and according to the Contract Act, s. 23, the object of an agreement is lawful unless it is (a) ‘forbidden by law", or (6) of such a nature that if permitted it would defeat the provisions of any law, or (c) fraudulent,' or (d) injurious 'to the person or property of another,' or (e) regarded by the Court as 'immoral or opposed to public policy'

The immorality here referred to is, no doubt, contravention of what is now deemed morality by civilised persons. Thus, the trade of prostitution is recognised and legalised by Hindú law?; but our Courts in India would certainly refuse to enforce an agreement made to clothe or lodge a woman for the purpose of enabling her to carry on that trade.

The agreement must purport to produce a legally binding result. Thus, to quote Prof. Holland, the acceptance of an invitation to dinner, or an engagement to take a walking tour with a friend in Switzerland are no contracts. So when A accepts in jest of a promise made in jest by B to pay A a fabulous amount on the occurrence of a specified event,

The agreement must be such as produces a binding result upon the mutual relations of the parties. Thus, to use Prof. Holland's illustrations, the agreement of a bench of judges as to the view to be taken of a particular case, or the resolution of a board of directors as to the action to be entered upon by their company, is not a contract.

4. Lastly, there must in every case be certain formalities, or lawful consideration, or both. Formalities such as writing, signature, attestation, registration, delivery, are required in the following (amongst other) cases :

agreement without consideration made on account of natural affection between near relatives (writing and registration):

promise to pay a time-barred debt (writing and signature) by the promisor or his agent)*:

sale of tangible immoveable property worth Rs. 100 and upwards (registered instrument) :

sale of such property worth less than Rs. 100 (registered instrument or delivery):

Formali. ties.

? 2 Mad. H. C. 78, per Holloway J.
• Contract Act, sec, 25, cl. (1).
+ Ibid. cl. (3).
5 Act IV of 1882, sec. 54.

1 That is, apparently, 'legislative enactment.' Seetion 23 therefore repeals the Muhammadan law' that a sale of pork or wine is void, Hidayah, ii. 429.

o Ibid.

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Mortgage securing Rs. 100 and upwards (registered instrument signed and attested):

Mortgage securing less than Rs. 100 (instrument signed and attested, or delivery):

The contracts entered into by those who issue, endorse or accept negotiable instruments must by the nature of the case be in writing. Contracts entered into by companies under the Indian Companies Act are regulated by Act VI of 1882, secs. 67, 72.

Even when formalities in the embodiment of contracts are at the option of the parties, there may be a concluded binding contract, although there is an intention to put its terms into a more formal shape The statutory rules as to consideration (causa) are contained Considera

tion. in the Contract Act, sec. 2, cl. (d), 10, 23–25. It is thus defined: When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or abstain from doing something, such act or abstinence or promise is called a consideration for the promise.'

It would seem from this that in India the consideration need have no value, and, accordingly, that a promise by A to perform an already existing legal duty, e.g. to give true evidence in a civil suit, not to evade process, to pay a debt", or not to commit a specified crime, is consideration' sufficient to support a contract with B if the promise be made at the desire of B. This result was certainly not intended by the framers of the Act, who were English lawyers, familiar with the doctrine that a consideration, however inadequate, must have some value, that, in other words, the party giving it thereby undertakes some burden, or loses something, which in contemplation of law may be of value.

The 'act, abstinence or promise' must be lawful' (sec. 10), and it 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 the Court regards it as immoral or opposed to public policy (sec. 23).

8 Mad. H. C. 5, following Fowle there is no consideration, or for favourv. Freeman, 9 Ves. 351. So 3 All. 469. able evidence, either true or false, and

? 4 Mad. H.C. 7, where the Court (in then the consideration is vicious. 1868) held that an agreement by A to 3 See 7 Bom. H. C., 0. C. J. 9, pay money to B in consideration of B's where in 1870) a promissory note giving evidence on behalf of A could payable on demand given for interest not be enforced, for here the agreement due on a mortgage deed was held void is either for true evidence, and then for want of consideration.

VOL. I.

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