Note the various ingredients of incapacity to contract.
Be clear about the legal consequence of contract with a minor.
Be familiar with the concept of ‘consensus ad idem’ i.e. parties agreeing upon the same thing in the same sense.
Try to grasp the characteristics of different elements vitiating free consent and particularly distinguish amongst fraud, misrepresentation and mistake.
Understand the circumstance when object and consideration become unlawful.
Be aware of the agreements opposed to public policy. It has already been considered that an agreement results from a proposal by one party and its acceptance by another. We have already discussed offer, acceptance and consideration in detail. We shall now discuss in detail the elements which constitute a valid contract enforceable in law. Section 10 of the Indian Contract Act provides that an agreement in order to be a contract, must satisfy the following conditions:
(1) it must be made by the free consent of the parties;
(2) the parties must be competent to contract;
(3) it must be made for a lawful consideration and with a lawful object;
(4) it should not have been expressly declared as void by law. Also, there must be consensus ad idem or identity of minds in the sense that parties have agreed about the subject matter of the contract at the same time and in the same sense, as evidenced by offer and acceptance (Section 13). It has also been observed that the agreement must import an intention to create legal relationship between the parties, and that agreements relating to social matters are not enforceable by law.
1.14 CAPACITY TO CONTRACT
Who is competent to contract? Every person who (a) has attained the age of majority, (b) is of sound mind and (c) is not otherwise disqualified from contracting, is competent to contract. (Section 11)
(a) Age of majority : In India, the age of majority is regulated by the Indian Majority Act (Act IX of 1875). Every person domiciled in India attains majority on the completion of 18 years of age.
(b) Sound mind : A person is said to be of sound mind for the purposes of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judgement as to its effect upon his interests. A person who is usually of unsound mind, but occasionally of sound mind, may make a contract
when he is of sound mind. A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.
(a) Position of Minor’s agreement
1. An agreement entered into by a minor is altogether void : The word void when used in relation to a minor it should be understood as “void as against the minor”. Contract with or by a minor is altogether void. The Indian Contract Act simply says that only a person who is a major is competent to contract. The main reason for holding a minor’s agreement void is that where an agreement by a minor involves a promise on his part or his promise is a necessary part of the agreement it is void because a minor is incapable of giving a promise imposing a legal obligation.
2. Minor can be a beneficiary : Though a minor is not competent to contract, nothing in the Contract Act prevents him from making the other party bound to the minor. Thus, a promissory note duly executed in favour of a minor is not void and can be sued upon by him, because he though incompetent to contract, may yet accept a benefit. A minor cannot become partner in a partnership firm. However, he may with the consent of all the partners, be admitted to the benefits of partnership (Section 30 of the Indian Partnership Act).
3. Minor can always plead minority : A minor’s contract being void, any money advanced to a minor on a promissory note or otherwise, cannot be recovered. Even when a minor procures a loan by falsely representing that he is full age, it will not stop him from pleading his minority in a suit to recover the amount and the suit will be dismissed. But where a minor had fraudulently mortgaged and sold certain properties, the Court held that on the cancellation of the agreement at the instance of the minor the lender and purchaser must be compensated.
4. Ratification on attaining majority is not allowed : As a minor’s agreement is void he cannot validate it by ratification on attaining majority. For instance, a minor borrows money and executes a promissory note. On attaining majority, he executes a fresh promissory note in substitution of the one executed as a minor. The second promissory note is also void being without consideration. But a person who supplies necessaries of life to a minor or to one whom the minor is legally bound to support, according to his situation in life, is entitled to be reimbursed from the property of the minor not on the basis of any contract but on the basis of an obligation resembling a contract (Section 68).But a minor’s property in liable for necessaries and no personal liability is incurred by him.
5. Contract by guardian - how far enforceable : Though a minor’s agreement is void, his guardian can, under certain circumstances enter into a valid contract on the minor’s behalf. Where the guardian makes a contract for the minor, which is within his competence and which is for the benefit of the minor, there will be valid contract which the minor can enforce. For instance a guardian can make an enforceable contract of marriage for a minor. But all contracts made by guardian on behalf of a minor are not valid. For instance, the guardian of a minor has no power to bind the minor by a contact for the purchase of immovable Property. But a contract entered into by a certified guardian (appointed by the Court) of a minor, with the sanction of the court for the sale of the minor’s property, may be enforced by either party to the contract.
6. Liability for necessaries : Under Section 68, any person would be entitled to reimbursement out of the minor’s estate, for necessaries supplied to him or to his family. Necessaries as defined by the English Sale of Goods Act, also means, goods suitable to the condition in the life of infant as required by him at the time of sale of delivery. It includes not only food and clothing but also education and instruction. Necessaries also include ‘goods’ and services. If minor had obtained payment fraudulently by concealment of age, he may be compelled to restore the payment but he cannot be compelled for an identical sum, if any, as it would amount to enforcing a void contract.
(b) Contract by a person of unsound mind : A person of unsound mind too is, under the Indian Contract Act, incapable of entering into a contact. Although a contract by a person who is not of sound mind is void, such a person can enter into a valid contract during an interval of lucidity. The test of unsoundness of mind is whether or not the person is capable of understanding the business and of forming a rational judgement as to its effect upon his interest. Idiots, lunatics and drunken persons are examples of those having an unsound mind.
The presence of absence of the capacity mentioned in this Section at the time of making the contract is in all cases a question of fact. Where a person is usually of sound mind, the burden of proving that he was of unsound mind at the time of execution of a document lies on him who challenges the validity of the contract.
For example, a patient in a lunatic asylum, who is at intervals of sound mind may contract during such intervals. The liability for necessaries of life supplied to persons of unsound mind is the same as for minors (Section 68).
(c) Contract by disqualified persons : Besides minors and persons of unsound mind, there are also other persons who are disqualified from contracting, partially or wholly, so that the contracts by such person are void. If, by any provincial legislation, a person is declared ‘disqualified proprietor’, he is not competent to enter into any contract in respect of the property. An alien enemy, during war, cannot enter into a contract with an Indian subject. He cannot sue in Indian Courts without a licence from the Central Government either, this disability being a matter of public policy. Similarly, a statutory corporation cannot enter into a contract which is ultra vires its memorandum. Likewise, municipal bodies are disqualified from entering into contracts which are not within their statutory powers. Sovereign States, Ambassadors and Diplomatic Couriers enjoy certain special privileges with the result that they cannot be legally proceeded against in Indian Courts. However, they can, at their will enter into contracts which may be enforceable in Indian Courts.
1.15 FREE CONSENT
According to Section 13, “two or more persons are said to have consented when they agree upon the same thing in the same sense (Consensus-ad-idem). Consequently, when parties to a contract make some fundamental error as to the nature of the transaction, or as to the person dealt with or as to the subject-matter of the agreement, it cannot be said that they have agreed upon the same thing in the same sense. And if they do not agree in the same sense, there cannot be consent. A contract cannot arise in the absence of consent. If two persons enter into an apparent contract concerning a particular person or ship, and it
turns out that each of them, misled by similarity of name, had a different person or ship in his mind, no contract would exist between them as they were not ad idem, i.e., of the same mind. Again, ambiguity in the terms of an agreement, or an error as to the nature of any transaction or as to the subject-matter of any agreement may prevent the formation of any contract on the ground of absence of consent. As has been said already, one of the essential elements of a contract is consent and there cannot be a contract without consent. Consent may be free or not free. Only free consent is necessary for the validity of a contract. Consent is free when it is not caused by coercion, undue influence, fraud, misrepresentation or mistake (Section 14). When consent is not caused by any of these factors, it is said to have been freely given. When consent is not free due to mistake, the agreement is void but in all other cases, the contract is voidable at the option of the party whose consent was obtained by coercion, etc.
1.16 ELEMENTS VITIATING FREE CONSENT
We shall now explain these elements one by one.
(a) Coercion : Section (15) : “Coercion” is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860), or the unlawful detaining, or threatening to detain any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. For example, X says to Y: “I shall kill your son, or I shall not return the documents of title relating to your wife’s property, unless you agree to sell your house to me for Rs. 5,000". Y says, “All right, I shall sell my house to you for Rs. 5,000 : do not kill my son or do not detain my wife’s documents of title”. X has employed coercion; he cannot therefore enforce the contract. But Y can enforce the contract if he finds the contract to his benefit. An agreement induced by coercion is voidable and not void. That means it can be enforced by the party coerced, but not by the party using coercion. Where husband obtained a release deed from his wife and son under a threat of committing suicide, the transaction was set aside on the ground of coercion, suicide being forbidden by the Indian Penal Code. A person to whom money has been paid or anything delivered under coercion, must repay or return it. (Section 71).
(b) Undue influence (Section 16) : A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage of the other. A person is deemed to be in a position to dominate the will of the other, when he holds authority real or apparent over the other, or when he stands in a fiduciary relation to the other.
Examples: 1. A father, by reason of his authority over the son can dominate the will of the son.
2. Again by reason of fiduciary relationship, a solicitor can dominate the will of his client and
3. A trustee can dominate the will of the beneficiary.
4. Similarly, a person whose mental capacity is affected by age, illness or distress may be a prey to undue influence. For instance, a doctor is deemed to be in a position to dominate the will of his patient enfeebled by protracted illness.
The essential ingredients under this provision are:
(i) One of the contracting parties dominates the will of another, or has a real or apparent authority over the other, or stands in a fiduciary position to the other. That means one party is dominating the other party.
(ii) The dominating party has taken an unfair advantage over the weaker party.
(c) Fraud (Section 17) : As per the Act “Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance or by his agent with intent to deceive another party thereto or his agent, or to induce him to enter into the contract :
(i) the suggestion, as to a fact, of that which is not true by one who does not believe it be true;
(ii) the active concealment of a fact by one having knowledge or belief of the fact;
(iii) A promise made without any intention of performing it;
(iv) any other act fitted to deceive;
(v) any such act or omission as the law specially declared to be fraudulent. The fraud, which results into a contract, is only covered by this section. Any fraud committed by a party which does not lead the other party to enter into a contract is not covered by this section. Mere silence amounting to fraud? Mere silence as to facts likely to affect the willingness of a person to enter into a contract is no fraud; but where it is the duty of a person to speak, or his silence is equivalent to speech, silence amounts to fraud. [Read the illustrations under the Explanation to Section 17 of the Indian Contract Act.]
Exceptions to this rule :
(i) Where the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak. Duty to speak arises when one contracting party reposes trust and confidence in the other or where one party has to depend upon the good sense of the other (e.g. Insurance Contract).
(ii) Where the silence is in itself, equivalent to speech.
(d) Misrepresentation (Section 18): Where a person asserts something which is not true, though he believes it to be true, his assertion amounts to misrepresentation. Misrepresentation may be either innocent or without reasonable ground. Misrepresentation is misstatement of facts by one, which misleads the other who, consequently, can avoid the contract. For example, A makes a positive statement to B that C will be made the director of a company. A makes the statement on information derived, not directly from C but from M. B applies for shares on the faith of the statement which turns out to be false. The statement amounts to misrepresentation, because the information received second-hand did not warrant A to make the positive statement to B [Section 18(1)].
Distinction between Coercion and Undue influence :
|It involves the physical force or threat. The aggrieved party is compelled to make the contract against its will.||It involves moral or mental pressure. |
|It involves committing or threatening to commit an act forbidden by Indian Penal Code or detaining or threatening to detain property unlawfully.||No such illegal act is committed or a threat is given.|
|It is not necessary that there must be some sort of relationship between the parties.||Some sort of relationship between the parties is absolutely necessary.|
|Coercion need not proceed from the promisor nor need it be directed against the promisor.||Undue influence is always exercised between parties to the contract.|
|The contract is voidable at the option of the party whose consent has been obtained by the coercion or enforce it in a modified form.||Where the consent is induced by undue influence, the contract is either voidable or the court may set it aside.|
|In case of coercion where the contract is rescinded by the aggrieved party, as per Section 64, any benefit received has to be restored back to the other party.||The court has the discretion to direct the aggrieved party to return the benefit in whole or in part or not to give any such directions.|
Distinction between fraud and misrepresentation : The principal difference between fraud and misrepresentation is that in the case of fraud the person making representation does not believe it to be true. And in the case of misrepresentation he believes it to be true. But in both cases, it is mis-statement of fact which misleads the other party. Again fraud not only affords a ground for avoiding the contract, it also enabled the party defrauded to bring an action in tort for damages whereas misrepresentation merely affords a ground for avoiding the contract and not for bringing an action in tort. When recession is claimed, it is only necessary to prove that there was misrepresentation then however honestly it may have been made, however, free from blame the person who made it may be, the contract, having been obtained by misrepresentation, cannot stand. But in order to sustain an action for deceit, there must be proof of fraud; and fraud is proved only when it is shown that a false statement has been made knowingly or without belief in its truth, or recklessly, carelessly whether it is true or false. Again in case of misrepresentation the fact that the plaintiff had that means of discovering the truth by exercising ordinary diligence, can be good defence against the repudiation of the contract, whereas such a defence cannot be set up in the case of fraud other than fraudulent silence [Exception to Section 19].
Misrepresentation as to law : Misrepresentation as to fact renders a contract, voidable misrepresentation as to law does not, ordinary, make the contract voidable. But a deliberate misrepresentation in matter of law is certainly a cause for avoiding a contract.
Consequences of coercion, fraud, misrepresentation etc. (Section 19) : It has already been considered that when consent to an agreement is caused by coercion, undue influence, fraud or misrepresentation, though the agreement amounts to a contract, such a contract is voidable at the option of the party those consent was so obtained. The party, however, may insist that the contract should be performed and that he should be put in the same position in which he would have been, if the representation made had been true. For instance, A fraudulently informs B that A’s estate is free from encumbrance. B thereupon agrees to buy the estate. The estate is, however, subject to mortgage. B may either avoid the contract, or may insist on its being carried out and the mortgage-debt redeemed. But a person who had the means of discovering the truth with ordinary diligence cannot avoid a contract on the ground that his consent was caused by misrepresentation or silence amounting to fraud. For example, A by a misrepresentation leads B to believe erroneously that 750 tons of sugar is produced per annum at the factory of A. B examines the accounts of the factory, which should have disclosed, if ordinary diligence had been exercised by B, that only 500 tons had been produced. Thereafter B purchases the factory. In the circumstance, B cannot repudiate the contract on the ground of A’s misrepresentation. Where a party to a contract perpetrates fraud or misrepresentation, but the other party is not, in fact, misled by such fraud or misrepresentation, the contract cannot be avoided by the latter. (Explanation to Section 19). Thus when a seller of specific goods deliberately conceals a fault in order that the buyer may not discover it even if he inspects the goods but the buyer does not in fact, make any inspection, the buyer cannot avoid the contract, as he is not in fact deceived by the conduct of the seller. A student was induced by his teacher to sell his brand new car to the later at less than the purchase price to secure more marks in the examination. Accordingly the car was sold. However, the father of the student persuaded him to sue his teacher. State on what ground the student can sue the teacher? Yes, A can sue his teacher on the ground of undue influence under the provisions of Indian Contract Act, 1872. A contract brought as a result of coercion, undue influence, fraud or misrepresentation would be voidable at the option of the person whose consent was caused.
Mistake as per Section 20 : When both the parties to an agreement are under a mistake to a matter of act essential to the agreement the agreement is altogether void. The Court will enforce a voidable contract if not avoided, but will not recognise an agreement that is void. For instance, A agrees to sell to B a specific cargo of goods supposed to be on its way from England to Bombay. It turns out that before the day of the bargain, the ship conveying the cargo had been cast away and the goods lost. Neither of the parties was aware of these facts. The agreement was void. Both the parties must be under mistake. A unilateral mistake, that is to say, mistake of one party, does not render the agreement void (Section 22). A agrees to purchase from B 18 carat gold thinking to be pure gold; B has not been instrumental to the creation of such an impression. It is a valid contract between A and B.
Notice that the mistake must be as to a fact, not law. A and B wrongly believe that a particular debt is not barred by the Law of Limitation and on the basis of such belief enter into a contract. The contract is valid, mistake being not of fact but of law. A question of foreign law is, however, a question of fact. Again, the existence of a particular private right is a matter of fact, though depending on rules of law. Thus, a man’s promise to buy property which, unknown to him already belongs to him is not binding on him. Further, the mistake must be as to an essential fact. Whether the fact is essential or not depends on whether a reasonable man would regard the fact as an essential in the circumstances. A mere wrong opinion as to the value is not an essential fact. For instance, A and B both believe that a particular kind of rice is being sold in the market at Rs. 1,780 per quintal and A sells rice of that kind to B at Rs. 1,780 per quintal. But, in fact, the market price was Rs. 1,900. The contract is valid. Mistake renders the agreement void; neither party can enforce the contract against the other. (You should carefully consider the difference in the effect of coercion, undue influence, fraud and misrepresentation, on the one hand, and the effect of mistake, on the other, on an agreement.)
1.17 LAWFUL OBJECT AND THE CONSIDERATION
We shall now discuss the next two ingredients of a valid contract, viz., lawful object and lawful consideration. There are certain provisions of law which are general in character are applicable to the community as a whole. Subject thereto, an individual generally has the right to adjust his rights and obligations as he may wish. But this contractual freedom or the right of individuals to make by an agreement what in effect is law between themselves, is not absolute. In other words there is a limitation on the contractual freedom of an individual. The necessity for it will be clear from the following illustration: Suppose, A agrees to pay Rs. 100 to B on B’s stealing C’s purse. In this case, the Court obviously cannot compel A to pay B, if B has stolen the purse because it will be encouraging theft which is hit by the Indian Penal Code. Object means purpose or design. The term ‘consideration’ is defined in Section 2(d) and the various forms it may take have been considered earlier in this Study Module. Where A agrees to sell goods to B, and B, who is insolvent assigns the benefit of the contract for Rs. 100 with a view to defrauding his creditors, the consideration for the assignment; viz., the sum of Rs. 100 is lawful but the object viz., defrauding the creditors, is unlawful as it is intended to defeat the provisions of the insolvency law.
1.18 UNLAWFUL OBJECT
The limits to contractual freedom are set out in Section 23 of the Act. An agreement, the object or consideration of which is unlawful is void. “Consideration or object is unlawful if it is forbidden by law; or it would; if permitted defeat the provisions of any or law or is fraudulent; or involves injury to the person or property of another, or is immoral; or opposed to public policy.” In the following examples, the agreement is void because the object is unlawful:
(1) A, B and C enter into an agreement for the division among them of gains acquired or to be acquired by fraud. The agreement is void, as its object, viz., acquisition of gains by fraud is unlawful.
(2) A promises to B to abandon a prosecution which he had instituted against B for robbery and B promises in lieu thereof to restore the value of the property robbed. The agreement is void as its object, namely, the stifling of prosecution, is unlawful.
1.19 UNLAWFUL CONSIDERATION
The following is an example of the agreement which is void because of unlawful consideration. A promises to obtain for B an employment in the public service and B promises, in return, to pay Rs. 1,000 to A. The agreement is void, as the consideration thereof is unlawful. Here A’s promise to procure for B an employment in the public services is the consideration for B’s promise to pay Rs. 1,000. The consideration, being opposed to public policy, is unlawful. The seven circumstances which would make consideration as well as an object unlawful are discussed below :
(i) Forbidden by law : Acts forbidden by law are those which are punishable under any statute as well as those prohibited by regulations or orders made in exercise of the authority conferred by the legislature. Let us consider an example. A licence to cut grass is given to X by the Forest Department under the Forest Act. One of the terms of licence is that the licencee should not assign his interest under the licence without the permission of the Forest Officer, and a fine is prescribed for a breach of this condition. But the observance of the conditions of the licence is not obligatory under the Forest Act. If A in breach of the condition, agrees to assign his interest under the licence to B, that agreement will be valid. Here, the assignment is not prohibited by law, the condition against assignment has been imposed only for administrative purpose or solely for the protection of revenue.
(ii) Defeat of the provision of law : The term ‘law’ includes any legislative enactment or rule of the Hindu and Muslim Laws or any other rule for the time being in force in India. Legislative enactment would be defeated by an agreement by a debtor not to plead limitation, as the object is to defeat the provisions of the Limitation Act. The Hindu Law is defeated by an agreement to give as son in adoption in consideration of annual allowance to the natural parents.
(iii) Defeat of any rule for the time being in force in India : Example - A Receiver being an officer of the Court, the Court has also the jurisdiction to determine his remuneration, and the parties cannot by any of theirs add to or derogate from the functions of the Court without its authority. A promise, therefore, to pay the salary of a receiver without the leave of the Court, even if unconditional, being in contravention of law, is not binding on the promisor. The object of consideration in all the agreements aforementioned being unlawful, these are void.
(iv) Fraudulent : The following are examples of agreement the object or consideration whereof is unlawful on the ground of fraud
(1) A, an agent for a zamindar agrees for money without the knowledge of his principal, to obtain for B a lease of land belonging to his principal. The agreement between A and B is void, as the consideration is fraudulent.
(2) An agreement between A and B to defraud a department of Government by submitting a tender in the name of one of them only, though they were both partners in the transaction is void, as the object is fraudulent.
(v) Injury to the person or property of another : The general term “injury” means criminal or wrongful harm. In the following examples, the object or consideration is unlawful as it involves injury to the person or property of another.
(1) An agreement to print a book in violation of another’s copyright is void, as the object is to cause injury to the property of another. It is also void as the object of the agreement is forbidden by the law relating to copyright.
(2) A promises to repay his debt by doing manual labour daily for a special period and agrees to pay interest at an exorbitant rate in case of default. Here A’s promise to repay by manual labour is the consideration for the loan, and this consideration is illegal as it imposes what, in substance, amounts to slavery on the part of A. In other words, as the consideration involves injury to the person of A, the consideration is illegal. Here the object too is illegal, as it seeks to impose slavery which is opposed to public policy. Hence the agreement is void.
(vi) Immoral : The following are the illustrations of agreements where the object or consideration is unlawful, being immoral.
(1) A landlord cannot recover the rent of a house knowingly let to prostitute who carries on her vocation there. Here, the object being immoral, the agreement to pay rent is void.
(2) Where P had advanced money to D, a married woman to enable her to obtain a divorce from her husband and D had agreed to marry him as soon as she could obtain the divorce, it was held that P was not entitled to recover the amount, since the agreement had for its object the divorce of D from her husband and the promise of marriage given under these circumstances was against good morals.
(vii) Agreement opposed to public policy : The expression ‘public policy’ can be interpreted either in a wide or in a narrow sense. The freedom to contract may become illusory, unless the scope of ‘public policy’ is restricted. In the name of public policy, freedom of contract is restricted by law only for the good for the community. In law, public policy covers certain specified topics, e.g., trading with an enemy, stifling of prosecutions, champerty, maintenance, interference with the course of justice, marriage brokerage, sales of public offices, etc. Agreements tending to create interest against duty, agreements tending to create monopolies and agreements not to bid at an auction are also opposed to public policy. An attempt to enlarge the scope of the doctrine is bound to result in the curtailment of individual freedom of contract. Public policy, on this account, has been described as an unruly horse which, if not properly bridled, may carry its rider, he knows not where. It being an untrustworthy guide for regulating the relations between parties it should not be invoked except within the prescribed limits described below.
(a) Trading with enemy : Any trade with person owing allegiance to a Government at war with India without the licence of the Government of India is void, as the object is opposed to public policy. Here the agreement to trade offends against the public policy by tending to prejudice the interest of the State in times of war.
(b) Stifling prosecution : An agreement to stifle prosecution tends to be a perversion or an abuse of justice; therefore, such an agreement is void. The principle is that one should not make a trade of felony. The compromise of any public offence is generally illegal. Under the Indian Criminal Procedure Code, there is, however, a statutory list of compoundable offences and an agreement to drop proceeding relating to such offences with or without the permission of the Court, as the case may be, in consideration the accused promising to do something for the complainant, is not opposed to public policy. Thus, where A agrees to sell certain land to B in consideration of B abstaining from taking criminal proceeding against A with respect to an offence which is compoundable, the agreement is not opposed to public policy. But, it is otherwise, if the offence is uncompounable.
(c) Champerty and maintenance : Maintenance is the promotion of litigation in which one had no interest and champerty is bargain whereby one party agrees to assist the other in recovering property, with a view to sharing the profits of litigation. Agreements tending to champerty and maintenance are void in England but in India they are not necessarily void. Thus, in India, an agreement to share the subject of litigation, if recovered in consideration of the party’s supplying the funds in good faith to carry it on, is not itself, opposed to public policy. But where such advances are made by way of gambling in litigation, the agreement to share the subject of litigation is certainly opposed to public policy and therefore void.
(d) Interference with the course of justice : An agreement whose object is to induce any judicial officer of the State to act partially or corruptly is void, as it is opposed to public policy; so also is an agreement by A to reward B, who is an intended witness in a suit against A in consideration of B’s absenting himself from the trial. For the same reasons, an agreement which contemplates the use of under-hand means to influence legislation is void. Similarly, an agreement to induce any executive officer of the State to act partially or corruptly is void.
(e) Marriage brokerage contracts : An agreement to negotiate marriage for reward, which is known as a marriage brokerage contract, is void, as it is opposed to public policy. For instance, an agreement to pay money to a person hired to procure a wife is opposed to public policy and therefore void.
(f) Interest against obligation : The following are examples of agreement that are void as they tend to create an interest against obligation. The object of such agreements is opposed to public policy.
(1) An agreement by an agent to receive without his principal’s consent compensation from another for the performance of his agency is invalid.
(2) A, who is the manager of a firm, agrees to pass a contract to X if X pays to A Rs. 2,000 privately; the agreement is void.
(g) Sale of public offices : An agreement to traffic in public office is opposed to public policy, as it interferes with the appointment of a person best qualified for the service of the public. Public policy requires that there should be no money consideration for the appointment to an office in which the public is interested. The following are the examples of agreements that are void; since they are tantamount to sale of public offices.
(1) An agreement to pay money to a public servant in order to induce him to retire from his office so that another person may secure the appointment is void.
(2) An agreement to procure a public recognition like Padma Vibhushan for reward is void.
(h) Agreement for the creation of monopolies : Agreements having for their object the establishment of monopolies are opposed to public policy and therefore void. It is also hit by the MRTP Act.
(i) Agreement in restraint of marriage (Section 26) : Every agreement in restraint of marriage of any person other than a minor, is void. So if a person, being a major, agrees for good consideration not to marry, the promise is not binding.
(j) Agreement in restraint of trade (Section 27) : An agreement by which any person is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. But this rule is subject to the following exceptions, namely, where a person sells the goodwill of a business and agrees with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer or his successor in interest carries on a like business therein, such an agreement is valid (goodwill is the advantage enjoyed by a business on account of public patronage and encouragement from habitual customers). The local limits within which the seller of the goodwill agrees not to carry on similar business must be reasonable. Under Section 36 of the Indian Partnership Act, if an outgoing partner makes an agreement with the continuing partners that he will not carry on any business similar to that of the firm within a specified period or within specified local limits, such an agreement, though in restraint of trade, will be valid, if the restrictions imposed are reasonable. Similarly, under Section 11 of that Act an agreement between partners not to carry on competing business during the continuance of partnership is valid. But an agreement of service by which an employee binds himself, during the term of his agreement, not to compete with his employer is not in restraint of trade. For example, B, a physician and surgeon, employs A as an assistant for a term of three years and A agrees not to practice as a surgeon and physician during these three years. The agreement is valid and A can be restrained by an injunction if he starts independent practice during this period. Similarly, an agreement by a manufacturer to sell during a certain period his entire production to a wholesale merchant is not in restraint of trade. Likewise an agreement among the sellers of a particular commodity not to sell the commodity for less than a fixed price is not an agreement in restraint of trade.
(k) Agreement in restraint of legal proceedings (Section 28) : An agreement in restraint of legal proceeding is the one by which any party thereto is restricted absolutely from enforcing his rights under a contract through a Court or which abridges the usual period for starting legal proceedings. A contract of this nature is void. Such an agreement also is void under Section 23 of the Court Act, because its object is to defeat the provision of the Indian Limitation Act. However, there are certain exceptions to the above rule :
(i) A contract by which the parties agree that any dispute between them in respect of any subject shall be referred to arbitration and that only the amount awarded in such arbitration shall be recoverable is a valid contract.
(ii) Similarly, a contract by which the parties agree to refer to arbitration any question between them which has already arisen or which may arise in future, is valid; but such a contract must be in writing.
1.20 AGREEMENTS EXPRESSLY DECLARED VOID :
Certain agreements have been expressly declared void by the Contract Act. These are void ab initio and do not give rise to any legal consequences. We have already discussed some of these contracts such as agreements by incompetent parties (Section 11); agreements with an unlawful object or consideration (Section 23); agreement made under a mutual mistake of fact (Section 20); agreements without consideration (Section 25); Agreements in restraint of marriage, trade, or legal proceedings etc. We shall now discuss some other cases of agreements expressly declared to be void.
(a) Consideration Unlawful in Part : By virtue of Section 24, “if any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void.” This section is an obvious consequence of the general principle of Section 23. There is no promise for a lawful consideration if there is anything illegal in a consideration which must be taken as a whole. The general rule is that where the legal part of a contract can be severed from the illegal part, the bad part may be rejected and the good one can be retained. But where the illegal part cannot be severed, the contract is altogether void. Illustration : A promises to superintend, on behalf of Y, a legal manufacturer of indigo and an illegal traffic in other articles. B promises to pay A a salary of 2,000 rupees per month. The agreement is void, the object of A’s promise and the consideration for B’s promise being in part unlawful.
(b) Agreement : the meaning of which is uncertain (Section 29) : An agreement, the meaning of which is not certain, is void, but where the meaning thereof is capable of being made certain, the agreement is valid. For example, A agrees to sell B “a hundred tons of oil”. There is nothing whatever to show what kind of oil was intended. The agreement is void for uncertainty. But the agreement would be valid if A was dealer only in coconut oil; because in such a case its meaning would be capable of being made certain.
(c) Wagering agreement: An agreement by way of a wager is void. It is an agreement involving payment of a sum of money upon the determination of an uncertain event. The essence of a wager is that each side should stand to win or lose, depending on the way an uncertain event takes place in reference to which the chance is taken and in the occurrence of which neither of the parties has legitimate interest. For example, A agrees to pay Rs. 500 to B if it rains, and B promises to pay a like amount to A if it does not rain, the agreement will be by way of wager. But if one of the parties has control over the event, agreement is not a wager. Now, what is your view about a lottery authorised by the government? Is your agreement to buy a Haryana State Lottery ticket valid? It has been held that such an agreement is one by way of wager and hence void under Section 30.
Speculative transactions : Though wagering transactions are void, speculative transactions are generally valid. It is, however, sometimes difficult to distinguish between a speculative transaction and a wagering transaction. A speculative transaction essentially, must have two elements, namely, (1) mutual intention of the contracting parties to acquire or deliver, as the case may be, the commodities; and (2) the undertaking or risk arising from movement in prices. A wager, on the other hand, postulates only the incurring of risk. The essential character of a speculative transaction is stated below. A buys from B 100 bales of jute at Rs. 150 per bale for forward delivery after six months. At the time to delivery, the price of jute is Rs. 200. In these circumstances, at the end of six months A can either demand delivery of 100 bales or collect the difference in price at Rs. 50 bale. On the other hand, if the price has gone down to say, Rs. 125 per bale, A will be able to settle the transaction by paying B at Rs. 25 per bale. In the case, it will be observed, that the original intention of the parties was to purchase and sell the bales of jute. Merely because subsequently they transact by payment or receipt of the difference in price, the original character of the transaction is not thereby altered. If, however, the mutual intention was only to settle the transaction by payment or receipt of the difference in price, the transaction would be wagering contract which would be void. Thus, gambling is prohibited by law, whereas speculation is generally not. Under Section 30 of the Act, a wagering contract is void, the reason being that such a contract is opposed to public policy.
Wager and collateral transactions : Though a wagering contract is void, transactions incidental to wagering transactions are not void. Thus, a broker in a wagering transaction can recover his brokerage. Similarly a principal can recover from his agent the prize money received by him on account of a wagering transaction. When a transaction is simply void but not illegal, the collateral transaction would be valid. For example, a contract by way of wager is void by statute and no action can be brought to recover any money alleged to have been won upon a wager but it is not illegal. Therefore, a promise made by the loser of a wager to pay the amount lost in consideration of the winner’s forbearance to post him as defaulter, can be enforced as a fresh contract since it is separate and distinct from the original wagering contract, though collateral to it. But the position is different in respect of transactions collateral to illegal contracts. They are so invalid, e.g., security given for the regular payment of the rent of a house let out for purposes for gambling cannot be recovered; the recovery of security being tainted with illegality of the original transaction, cannot be enforced.
The following persons are incompetent to contract: (a) minor, (b) Persons of unsound mind, (c) other disqualified persons.
(a) Minor : Agreement with a minor is altogether void but his property is liable for necessaries supplied to him. He cannot be a partner but can be admitted to benefits of partnership with the consent of all partners. He can always plead minority and cannot be asked to compensate for any benefit received under a void agreement. Under certain circumstances, a guardian can enter into valid contract on behalf of minor. Minor cannot ratify a contract on attaining majority.
(b) Persons of unsound mind : Persons of unsound mind such as idiots, lunatics and drunkards cannot enter into a contract, but a lunatic can enter into a valid contract when he is in a sound state of mind. The liability for necessities of life supplied to persons of unsound mind is the same as in case of minors. (Section 68)
(c) Certain other persons are disqualified due to their status.
Two or more persons are said to consent when they agree upon the same thing in the same sense (Section 13). Consent is free when it is not caused by mistake, misrepresentation, undue influence, fraud or coercion. When consent is caused by any of above said elements, the contract is voidable at the option of the party whose consent was so caused (Sections 19 and 19A).
(a) Coercion : Coercion is the committing or threatening to commit any act, forbidden by the Indian Penal Code or the unlawful detaining or threatening to detain, any property, to the prejudice of any person with the intention of causing any person to enter into an agreement (Section 15). A contract induced by coercion is voidable at the option of the aggrieved party.
(b) Undue influence : When one party to a contract is able to dominate the will of the other and uses the position to obtain an unfair advantage, the contract is said to be induced by undue influence. (Section 16). Such contract is voidable, not void.
(c) Fraud : Fraud exists when a false representation has been made knowingly with an intention to deceive the other party, or to induce him to enter a contract (Section 17). Contract in the case is voidable.
(d) Misrepresentation : Means a misstatement of a material fact made believing it to be true, without an intent to deceive the other party (Section 18). Contract will be voidable in this case.
(e) Mistake : When both the parties are at a mistake to a matter of fact to the agreement, the agreement is altogether void.
LAWFUL OBJECT AND CONSIDERATION
An agreement where the object or the consideration is unlawful, is void. Object or consideration is unlawful if it is forbidden by law, it would defeat the provisions of law; or is fraudulent, or involves injury to the person or property of another; or is immoral; or is opposed to public policy. Besides the above said agreements, certain agreements have been expressly declared to be void by the Contract Act such as - wagering agreements, agreement with uncertain meaning, agreements where consideration is unlawful in part etc.