« 이전계속 »
• Govern ment of India.'
Moveable (6.) Moveable property'shall mean property of every deproperty.'
scription, except immoveable property;
(7.) Her Majesty'shall include Her heirs and successors Majesty.' to the Crown; • British (8.) “British India’ shall mean the territories for the time India.'
being vested in Her Majesty by the Statute 21 & 22 Vic., cap. 106 (An Act for the better government of India), other than the Settlement of Prince of Wales' Island, Singapore and Malacca;
(9.) 'Government of India’ shall denote the GovernorGeneral of India in Council, or, during the absence of the Governor-General of India from his Council, the President in Council, or the Governor-General of India alone, as regards the powers which may be lawfully exercised by them or him
respectively; * Local Go- (10.) ‘Local Government' shall mean the person authorised vernment.'
by law to administer executive government in the part of British India in which the Act containing such expression
shall operate, and shall include a Chief Commissioner; High (11.) - High Court’ shall mean the highest Civil Court of Court.'
appeal in such part; District (12.) · District Judge' shall mean the Judge of a principal Judge.'
Civil Court of original jurisdiction ;, but shall not include a
original civil jurisdiction ; • Magis- (13.) Magistrate' shall include all persons exercising
the technical division of property is
land to him, 6 N. W. P. 129; a decret
5 1 The word include' here and elsewhere in this section is enumerative, not exhaustive. Accordingly, : Village Munsif in the Madras Presi: dency has been held to be a · Magia trate' within sec, 26 of the Evidenco Act, 2 Mad. 5.
Civ. R. 141.
all or any of the powers of a Magistrate under the Code of Criminal Procedure ;
(14.) 'Barrister 'shall mean a barrister of England or Ire- · Barrister.' land, or a member of the Faculty of Advocates in Scotland;
(15.) Section ’ shall denote a section of the Act in which ‘Section.' the word occurs 1;
(16.) • Will'shall include a codicil and every writing making Will? a voluntary posthumous distribution of property;
(17.) ' Oath,''swear' and 'affidavit’ shall include affirma- "Oath, tion, declaration, affirming and declaring in the case of persons and affiby law allowed to affirm or declare instead of swearing; davit.'
(18.) ‘Imprisonment’shall mean imprisonment of either Imprisondescription as defined in the Indian Penal Code ;
(19.) And in the case of any one whose personal law permits Son. adoption, son’ shall include an adopted son, and father Father.' an adoptive father.
3. In all Acts made by the Governor-General of India in Council after this Act shall have come into operation :
(1.) For the purpose of reviving, either wholly or partially, Revival of a Statute, Act or Regulation repealed, it shall be necessary ex
repealed pressly to state such purpose ? ;
(2.) For the purpose of excluding the first in a series of Commencedays or any other period of time, it shall be sufficient to use time. the word 'from ;' (3.) For the purpose of including the last in a series of Termina
tion of days or any other period of time, it shall be sufficient to use time. the word 'to;'
(4.) For the purpose of expressing that a law relative to the Official chief or superior of an office shall apply to the deputies or subordinates lawfully executing the duties of such office in the ordinates, place of their superior, it shall be sufficient to prescribe the duty of the superior;
chiefs and sub
This should be: Chapter'shall 2 This should be extended so as to depote a chapter of the Act, 'section' preclude the revival of any right, a section of the Act, and clause' a privilege, matter or thing not in force clause of the section, in which the or existing when the repealing Act
comes into force.
Successor (5.) For the purpose of indicating the relation of a law to
the successors of any functionaries, or of corporations having perpetual succession, it shall be sufficient to express its relation
to the functionaries or corporations; and Substitu- (6.) For the purpose of indicating the application of a law to tion of function every person or number of persons for the time being executing aries. the functions of an office, it shall be sufficient to mention
the official title of the officer at present executing such functions, or that of the officer by whom the functions are commonly executed.
4. Whenever by any Act or Regulation now in force or be taken
hereafter to be in force, any duty of customs or excise or in pro rata.
the nature thereof is leviable on any given quantity, by weight, measure or value, of any goods or merchandize, a like duty shall be leviable according to the same rate on any greater or
less quantity. Recovery
5. The provisions of sections 63 to 70, both inclusive, of the of fines. Indian Penal Code, and of sections 386, 387, and 389 of the
Code of Criminal Procedure, shall apply to all fines imposed under the authority of any Act hereafter to be passed, unless
such Act shall contain an express provision to the contrary. Matters 6. The repeal of any Statute, Act or Regulation, shall not done under affect anything done or any offence committed ', or any fine an enactment
or penalty incurred, or any proceedings? commenced before the before its
repealing Act shall have come into operation 3. repeal to be unaffected.
1 See 2 Cal. 225, where, however, acted on after it is repealed; but that, Act I of 1868 did not apply.
with regard to all matters that have ? A suit is a judicial proceeding, taken place under it before its repeal, and the words any proceedings they remain valid, R. v. Deatox, 21 include all proceedings in any suit L. J. M. C. 208, cited 8 Bom. 345. from the date of its institution to its This section is not to be held to final disposal ; and therefore include govern all the remotest ministerial proceedings in appeal, 6 Bom. H. C., consequences of a suit arising on A. C. J. 169; 3 C:l. 674, and also applications made years afterwards specific proceedings taken in execu- according to the procedure in force at tion of a decree, 3 Cal. 679. See, too, its institution, but only to bring under 3 Cal. 727
the same law such series of proceed 3 1 All. 668 ; 2 All. 786, 851; 4 Cal. ings as group themselves naturally 538 ; 6 Mad. 338. The general rule together, as, e.g. those on a particular is that a repealed statute cannot be application for execution,' 7 Bom. 463.
INTRODUCTION TO THE CONTRACT ACT.
The Indian Contract Act, 1872, endeavours to codify--that is to say, arrange clearly and systematically—the chief rules relating to the formation, ratification, and discharge of all agreements enforceable by law, made between two or more persons, by which rights are acquired by one or more of them to acts or forbearances on the part of the other or others!. It also deals specially with the following classes of those agreements, viz. : Sale of Goods; Indemnity and Guarantee ; Bailment, including Pledge; Warranty; Agency and private Partnership (public partnerships are dealt with by the Indian Companies Act, 1882). It deals, lastly, with the quasi-contracts implied when A pays something which B ought to pay, or B receives something which A ought to receive. The obligation arising from Breach of Contract is partially dealt with by the section of the Contract Act relating to compensation. The law relating to the Specific Performance and Rescission of contracts was then codified by the Specific Relief Act, 1877, chapters II and IV. Then came the codification of the law of Negotiable Instruments (Act XXVI of 1881) which deals with the most important branch of the law relating to the assignment of contractual rights. Lastly, the rules relating to the assignment by operation of law of obligations on the transfer of land; to Sale, Mortgage and Lease of Immovables ; to Exchange and Gift of every kind of property, and to the assignment of contractual rights not comprised in Act XXVI of 1881, were codified by the Transfer of Property Act, 1882, chapters III, IV, V and VI.
It thus appears that, with the exceptions of the rules relating to the Interpretation of Contracts, of those relating to the special contracts of Carriage, Master and Servant, Bottomry, Respondentia, and Insurance, the Indian Legislature has codified, more or less completely, the law relating to every important kind of agreement; and draft codes relating to most of the excepted subjects are now in the Legislative Department of the Government of India.
1 See Anson, Law of Contract, 4th ed., p. 9.
In this Introduction we shall first consider the Indian law on the subject of Contract in general--its nature, operation, and discharge—and then notice briefly the Indian law relating to the
special forms of contract. Analysis of According to the latest analysis of a contract? its constituent a contract. elements are:
1. Several parties capable of contracting;
3. A matter agreed upon which is (a) possible, (6) legal ?, and (c) of a nature to produce a result legally binding and affecting the relations of the parties to each other; and
4. Very generally, either a solemn form or some fact which affords a motive for the agreement.
It will be both interesting and instructive to see how far the provisions of the Indian Contract Act conform to this analysis.
1. Various definitions of contract' have been framed; but all require the concurrence, or what a reasonable man would deem the concurrence, of two or more wills in producing a modification of the rights of the parties concerned. There must therefore be at least two distinct parties, a promisor (debitor) and a promisee (creditor). This distinction must not be merely formal, as where the same company had two departments, one for insurance and one for annuities, and the latter department effected an insurance with the former 3. And the promisee must not be an 'incerta persona,' e.g. 'the secretary for the time being.'
As to the capacity of the parties, the Contract Act declares that every person is competent to contract who is (1) of the age of majority according to which he is subject; (2) of sound mind; (3) not disqualified from contracting by any law to which he is subject. There are no exceptions in the case of married women, alien enemies, convicts, or barristers agreeing to render professional service. Nor does the Act say anything as to the limits of the contractual capacity of corporations :
2. The bilateral act expressive of agreement. This consists of a proposal on one side and an acceptance on the other. One party expresses his willingness to do or abstain from doing something, and the other party expresses his assent to such act or abstention.