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Special ContractsDr. V.K. Unni

Public Policy & Management GroupIndian Institute of Management Calcutta

E-mail: unniv@iimcal.ac.in / krisunni1@gmail.com

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Special Contracts In India, the Law of Contracts is contained in the Indian Contract

Act,1872. The Act lays down the general principles relating to formation,

performance and enforceability of contracts and the rules relating to certain special types of contracts like Indemnity and Guarantee; Bailment and Pledge, and Agency.

The Partnership Act; the Sale of Goods Act; the Negotiable Instruments Act; though technically belonging to the Law of Contracts, have been covered by separate enactments

Indemnity A contract by which one party promise to save the other from loss

caused to him by the conduct of the promisor himself or by the conduct of any other person is a “Contract of Indemnity"

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Special Contracts X contracts to indemnify Y against the consequences of any

proceedings which Z may take against Y in respect of a certain sum This is a contract of Indemnity.

The definition provides the following essential elements - There must be a loss The loss must be caused either by the promisor or by any other

person. Indemnifier is liable only for the loss. Thus, it is clear that this contract is contingent in nature and is

enforceable only when the loss occurs

Special ContractsRights of the indemnity holderThe promisee (Indemnity holder) in a contract of indemnity, acting

within the scope of his authority, is entitled to recover from the promisor

All damages that he is compelled to pay in a suit in respect of any matter to which the promise of indemnity applies.

All costs that he is compelled to pay in any such suit All sums which he may have paid under the terms of a

compromise in any such suiteDisadvantages of Indemnity An indemnity holder cannot hold the indemnifier liable until he

has suffered an actual loss. This is a great disadvantage to the indemnity holder in cases

where the loss is imminent and he is not in the position to bear the loss

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Special ContractsContract of Guarantee A contract of guarantee is a contract to perform the promise, or

to discharge the liabilities of a third person in case of his default. The person who gives the guarantee is called Surety, the person

in respect of whose default the guarantee is given is called Principal Debtor, and the person to whom the guarantee is given is called Creditor.

A Guarantee may be either oral or written." Illustration: X promises to a shopkeeper Y that X will pay for

the items being bought by Z if Z does not pay, this is a contract of guarantee. In this case, if Z fails to pay, Y can sue X to recover the balance.

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Special Contracts A contract of guarantee has the following essential elements 1. Principal Debtor - The main function of a guarantee is to help a

credit-unworthy person to get a loan or financial assistance Thus, there must exist a principal debtor for a recoverable debt

for which the surety is liable in case of the default of the principal debtor.

2. Consideration - As with any valid contract, the contract of guarantee also must have a consideration.

The consideration in such contract is anything done or the promise to do something for the benefit of the principal debtor

In general, if the principal debtor is benefited as a result of the guarantee, it is sufficient consideration for the sustenance of the guarantee.

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Special Contracts3. A guarantee obtained by misrepresenting facts that are

material to the agreement is invalid, Similarly a guarantee obtained by concealing a material fact

is invalid as well Continuing Guarantee A guarantee which extends to a series of transactions is

called a continuing guarantee. A continuing guarantee can be revoked at any time by the

surety by notice to the creditor. Once the guarantee is revoked, the surety is not liable for

any future transaction however he is liable for all the transactions that happened before the notice was given.

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Special ContractsRights of the Surety Guarantee being a contract, all rights that are available to the

parties of a contract are available to a surety as well. The following are the rights specific to a contract of

guarantee that are available to the surety. Rights against principal debtor 1. Right of Subrogation : Where a guaranteed debt has become

due, the surety upon payment is invested with all the rights which the creditor had against the principal debtor.

This means that the surety steps into the shoes of the creditor Whatever rights the creditor had, are now available to the

surety after paying the debt.

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Special Contracts2. Right to get Indemnified In every contract of guarantee there is an implied promise by

the principal debtor to indemnify the surety; and the surety is entitled to recover from the principal debtor whatever sum he has rightfully paid under the guarantee

Rights against creditor Right to securities : Surety is entitled to the benefit of every

security which the creditor has against the principal debtor at the time when the contract of guarantee is entered into

If the creditor loses or without the consent of the surety parts with such security, the surety is discharged to the extent of the value of the security.

Special Contracts Right of set off : If the creditor sues the surety, the surety may have

the benefit of the set off, if any, that the principal debtor had against the creditor.

He is entitled to use the defences that the principal debtor has against the creditor.

Thus if the creditor owes the principal debtor something, for which the principal debtor could have counter claimed, then the surety can also put up that counter claim.

Discharge of Surety A surety is said to be discharged from liability when his liability

comes to an end. A variance made without the consent of the surety in terms of the

contract between the principal debtor and the creditor, discharges the surety as to the transactions after the variance.

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Special Contracts The surety is discharged by any contract between the creditor and

the principal debtor by which the principal debtor is discharged; The liability of a surety is co-extensive with that of the principal

debtor, unless it is otherwise provided in the contract. Main Differences between Indemnity and Guarantee In a contract of indemnity there are two parties i.e. indemnifier and

indemnified. A contract of guarantee involves three parties i.e. creditor, principal debtor and surety.

An indemnity is for reimbursement of a loss, while a guarantee is for security of the creditor.

In a contract of indemnity the liability of the indemnifier is primary and arises when the contingent event occurs. In case of contract of guarantee the liability of surety is secondary and arises when the principal debtor defaults.

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Special Contracts The indemnifier after performing his part of the promise has no

rights against the third party, whereas in a contract of guarantee, the surety steps into the shoes of the creditor on discharge of his liability, and may sue the principal debtor

Guarantees and Debt Instruments by Corporates It is very common in a business transaction to support a loan

with a bank guarantee However in 2009 RBI had to intervene with a regulation

which had the effect of banning banks from issuing guarantees in the case of corporate debt instruments like debentures

This essentially followed SBI’s guarantee to Tata Motors’ Rs 4,200 crore non-convertible debentures (NCDs) in May 2009

Special Contracts Theoretically these NCDs could be bought by foreign funds and

if that happens the SBI guarantee will mean that a bank is indirectly guaranteeing a foreign investment

RBI wants to avoid a situation where Banks may go out of control by issuing such guarantees which could result in a higher exposure than their net worth, similar to the case of American International Group (AIG) in the US

As result of SBI's guarantee of timely payment of dues to the institutional investors, the Tata Motors bond issue obtained a higher rating from credit rating agencies, which in turn ensured lower interest rates.

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UB Holdings Guarantee of Kingfisher Loans United Breweries Holdings, a Vijay Mallya Group's holding

company with stakes in United Spirits, has guaranteed about Rs 6,000 crore of nearly Rs 7,000 crore loans of Kingfisher Airlines

Although there is very little in terms of assets recoverable from Kingfisher Airlines, the guarantee of UB Holdings could be used to enforce lenders' claim.

The value of shares held by UB Holdings in listed companies is valued at more than Rs 5,200 crore

Very recently (20/12/2013) the Karnataka High Court held as null and void the share transfer made by UB holdings in United Spirits to the British company Diageo in response to a petition by the creditors (banks)

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Special ContractsBailment and Pledge A 'bailment' involves the delivery of goods by one

person to another for some purpose upon a contract that they shall, when the purpose is accomplished be returned or disposed of according to the directions of the person delivering them.

The person delivering the goods is called the 'bailor' and the person to whom the goods are delivered is called the 'bailee'.

The examples of a contract of bailment are:-leaving luggage in a cloak room; leaving garments with a tailor etc.

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Special Contracts The important feature of bailment is the transfer of possession. The ownership remains with the owner and there cannot be a

bailment of immovable property like land. Pledge A 'pledge' involves a bailment of goods where the goods are

delivered as a security for payment of a debt or performance of a promise.

The bailor is called the 'pledgor' or 'pawnor' and the bailee is called the 'pledgee' or 'pawnee'.

Thus, pledge is a special kind of bailment and can be made only of movable properties.

In order to make the pledge legally valid it is essential that the pledgor has the legal right/title to retain the goods.

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Special ContractsMain Differences between Bailment and Pledge Purpose:- A pledge is made for a specific purpose (to raise a

loan), while bailment can be made for any purpose Property:- In bailment, the bailee gets only the possession of

goods bailed and the ownership remains with the bailor. In the case of pledge, the pledgee acquires a special property

in the goods pledged whereby he gets possession coupled with the power of sale, on default.

Right of sale :- Bailee can exercise a lien on the goods bailed and he has no right of sale (lien means the right to retain possession)

But in case of a pledge, the pledgee can sell the goods after due notice to pledgor.

Special ContractsContract of Agency Agency is a special type of contract. The principles of contract of agency are –1. Except matters of a personal nature, what all things a person can do

himself can also be done through agent2. A person acting through an agent is acting himself, i.e. act of agent is

act of Principal. - - Since agency is a contract, all general requirements of a valid

contract are applicable to agency contract also One important distinction is that no consideration is necessary to

create an agency. An agent is a person employed to do any act for another or to

represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is

called the principal

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Special Contracts Any person who is of the age of majority and who is of sound mind,

may employ an agent. As between the principal and third persons any person may become

an agent, but no person who is not of the age of majority and of sound mind can become an agent, so as to be responsible to his principal

An agent can act on behalf of Principal and can bind the Principal. Agent’s main duties to Principal Conducting principal’s business as per his directions Carry out work with normal skill and diligence Render proper accounts Agent’s duty to communicate with principal Agent’s duty to pay sums received for principal

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Special ContractsMain Powers of Principal Recover damages from agent if he disregards directions of Principal Obtain accounts from Agent Recover moneys collected by Agent on behalf of PrincipalMain Duties of Principal Pay remuneration to agent if it is agreed Indemnify agent for lawful acts done by him as agent Indemnify Agent for all acts done by him in good faith Indemnify agent if he suffers loss due to neglect or lack of skill of

Principal.

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Special ContractsTermination of Agency An agency is terminated by 1. the principal revoking his authority; or 2. by the agent renouncing the business of the agency or; 3. by the business of the agency being completed; or 4. by either the principal or agent dying or principal becoming a

person of unsound mind; or 5. by the principal being adjudicated an insolvent

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Special ContractsSale of Goods Sale of Goods is one of the special types of Contract and

initially this was part of Indian Contract Act itself Later on a separate Sale of Goods Act was passed in 1930. The Sale of Goods Act is complimentary to Contract Act. Fundamental provisions of Contract Act apply to contract of

Sale of Goods also. Thus provisions dealing with offer and acceptance, legally

enforceable agreement, mutual consent, parties competent to contract, free consent, lawful object, consideration etc. apply to contract of Sale of Goods also.

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Special Contracts A contract of sale of goods is a contract whereby the seller transfers

or agrees to transfer the property in goods to the buyer for a price. A contract of sale may be absolute or conditional. A contract of sale may be made in writing or by word of mouth, or

partly in writing and partly by word of mouth or may be implied from the conduct of the parties

Two parties are required for contract are the Buyer who buys or agrees to buy goods and Seller who sells or agrees to sell goods

Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time the contract is called an agreement to sell

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Special Contracts “Goods” means every kind of movable property other than

actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.

Conditions and Warranties Stipulation in a contract of sale with reference to goods which are the

subject thereof may be a condition or a warranty. A condition is a stipulation essential to the main purpose of the

contract, the breach of which gives rise to a right to treat the contract as cancelled.

A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as cancelled

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Special Contracts Caveat Emptor - The principle termed as ‘caveat emptor’ means

‘buyer be aware’. Generally, buyer is expected to be careful while purchasing the

goods and seller is not liable for any defects in goods sold by him. However with the evolution of Consumer Protection Laws this

concept is becoming outdated Delivery of goods to buyer : Delivery of the goods and payment of

the price are concurrent conditions, unless otherwise agreed This means that the seller shall be ready and willing to give

possession of the goods to the buyer in exchange for the price, and the buyer shall be ready and willing to pay the price in exchange for possession of the goods.

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Sale of Software ????Software Licences Software is never sold as any other product; it is

always viewed as an intangible property. It is only licensed and this is the most popular form

of agreement being made in relation to software. Under this agreement the person who develops the

software, licenses certain rights in relation to the software to the user.

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Sale of Software ???? What these contracts normally grant is a non-exclusive and

non-transferable licence to run the software on a single computer at a time.

The licensee is not in any way empowered to transfer this right to any third party.

Since the licence is non-exclusive in nature the Licensor can grant these rights to other parties.

The Licensee has the limited right to use the software only on one computer at a given time

If anybody loads the same software into his computer by making a copy from the Licensee then the Licensee is deemed to have violated the Licence agreement.

Sale of Software ????Shrink Wrap Agreements It is a sub category of software licences which intend to establish a

binding legal agreement between the software vendor and the user. The agreement can be generally seen inside the box containing the

software, printed on the envelope containing the CD-ROM or disks, or may be printed in the user manual.

There is a warning to the user not to open the software envelope or use the software unless and until he or she fully agrees with the terms and conditions of the agreement.

Shrink-wrap licences have traditionally been widely used in the computer software industry in mass market transactions

Interestingly the word "shrink-wrap" has been linked to the fact that such agreements used to be included on the outside of the software packaging, which was visible through the clear plastic shrink-wrap which was used to seal the package.

Special ContractsPartnership Partnership is one of the special types of Contract and earlier this was

part of Indian Contract Act itself but later converted into separate Act in 1932.

The Indian Partnership Act is complimentary to Contract Act. Basic provisions of Contract Act apply to contract of partnership

also. Basic requirements of contract i.e. legally enforceable agreement,

mutual consent, parties competent to contract, free consent, lawful object, consideration etc. apply to partnership contract

One crucial disadvantage of partnership is the unlimited liability of partners for the debts and liabilities of the firm.

Any partner can bind the firm and the firm is liable for all liabilities incurred by any firm on behalf of the firm.

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Special Contracts Partnership Firm is not a legal entity though it has limited identity

for purpose of tax law. Partnership is the relation between persons who have agreed to

share the profits of a business carried on by all or any one of them acting for all.

It is not a distinct legal entity apart from the partners Constituting it Each partner is ‘agent’ of all the remaining partners and thus

partners are ‘mutual agents’. As per normal provision of contract, a ‘partnership’ agreement can

be either oral or written. However an Agreement in writing is necessary to get the firm

registered.

Special Contracts The partners must come together to share profits and the share need

not be in proportion to funds contributed by each partner. Even though sharing of profit is essential, sharing of losses is not an

essential condition for partnership Since partnership is an ‘agreement’ there must be minimum two

partners. In case of partnership, the number of members must not exceed 100,

however this cap of 100 is not applicable if it is formed by professionals who are governed by special Acts (e.g. Chartered Accountants, Lawyers etc)

Dissolution of a firm can be a) By agreement , b) Compulsory dissolution in case of insolvency c) Dissolution on happening of certain contingency d) By notice e) Dissolution by Court

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Special ContractsLimited Liability Partnership The concept of limited liability partnership (LLP) has been

introduced in India by the Limited Liability Partnership Act 2008, which came into force from April 1, 2009

LLP tries to combine the advantages of ease of running a Partnership and separate legal entity status and limited liability aspect of a Company.

LLP is a separate legal entity separate from its partners, can own assets in its name, sue and be sued.

Unlike corporate shareholders, the partners have the right to manage the business directly

One partner is not responsible or liable for another partner’s misconduct or negligence.

Compulsory registration to be done with Registrar of Companies

LLP Minimum of 2 partners and no maximum cap on the number

of partners. Eligibility conditions for being a partner: Any individual or

body corporate may be a partner in a LLP. However an individual shall not be capable of becoming a partner of a LLP, if—(a) he has been found to be of unsound mind by a Court of competent jurisdiction and the finding is in force;(b) he is an undischarged insolvent; or(c) he has applied to be adjudicated as an insolvent and his application is pending.

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LLP LLP has introduced the concept of Designated Partners As per the law appointment of at least two “Designated Partners”

shall be mandatory for all LLPs. Designated Partners shall be accountable for regulatory and legal

compliances, besides their liability as partners, per-se Every LLP shall be required to have at least two Designated Partners

who shall be individuals and at least one of the Designated Partner shall be a resident of India.

The role of Designated Partners in case of LLP is on same footage as of Directors in case of Company.

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Special Contracts LLP has perpetual succession. The rights and duties of partners in LLP, will be decided by the

agreement between partners The duties and obligations of Designated Partners shall be as

provided in the law. Liability of the partners is limited to the extent of his contribution in

the LLP. Every partner of an LLP would be, for the purpose of the business of

the LLP, an agent of the LLP but not of the other partners No exposure of personal assets of the partner, except in cases of

fraud.

Special Contracts Both LLP and person, who own it, are separate entities and both

functions separately. Liability for repayment of debts and lawsuits incurred by the LLP

lies on it and not the owner. A LLP as legal entity is capable of owning its funds and other

properties, the LLP is the real person in which all the property is vested and by which it is controlled, managed and disposed off.

The LLP Act contains enabling provisions pursuant to which a firm (set up under Indian Partnership Act, 1932) and private company or unlisted public company (incorporated under Companies Act) would be able to convert themselves into LLPs

However converting an LLP into a company would not be allowed

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Special ContractsNegotiable Instruments Act 1881 Negotiable instruments play a very vital role in modern day

transactions These are the principal instruments for making payments and

discharging various obligations To be simple a negotiable instrument is a transferable

document which satisfies certain terms and conditions Since they are transferable, they pass on freely from hand to

hand and thereby form an essential part of modern day commercial transactions

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Special Contracts The relevant Indian Law dealing with these instruments is the

Negotiable Instruments Act, 1881 However the Act refrains from defining a negotiable instrument

instead it only states that a negotiable instrument means a promissory note, bill of exchange or cheque payable either to order or bearer (Sec 13)

In other words the Act does not define a negotiable instrument, it only clarifies that cheque, bills of exchange and promissory notes are negotiable instruments

The most important feature is the good title it confers on the person who receives it bona fide and for value, even if the transferor had defective title to the said instrument

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Special ContractsEssential features of negotiable instruments Negotiable instruments are easily transferable from person to person

and the ownership of the property in the instrument is passed on by mere delivery, if it is bearer instrument,

In the cases of order instruments, property in the instrument is passed on by endorsement and delivery

Transferability is an essential feature of a negotiable instrument A negotiable instrument confers absolute and good title on the

transferee, who takes it in good faith, for value and without notice of the transferor’s defective title on the said instrument

Illustration X sells his mobile phone to Y, who makes the payment through a bearer cheque. Even if Y has stolen this cheque from Z, still X will get good title over the said cheque if he has exercised reasonable care at the time of taking the cheque.

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Special Contracts Thus a negotiable instrument is an exception to the

general rule that the transferor cannot transfer title better than what he himself possesses

Promissory note Promissory note is an instrument in writing which

contains an unconditional promise signed by the maker to pay a certain sum of money only to a certain person or to the order of certain person or to the bearer of the instrument (Sec 4, N.I. Act 1881)

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Special Contracts Bill of Exchange It is an instrument in writing which contains an unconditional

order signed by the maker, directing a certain person to pay a certain sum of money only to a certain person or to the order of certain person or to the bearer of the instrument (Sec 5, N.I Act 1881)

Generally this is in the form of an order from the creditor to the debtor to pay a certain sum of money to a person specified.

The maker of the bill is called the drawer, person who is directed to pay is called the drawee and the person who is entitled to receive payment is called the payee

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Special Contracts In many occasions the drawer can be the payee alsoCheque Cheque is a bill of exchange drawn on a specified

banker and not expressed to be payable otherwise than on demand

Thus in the case of a cheque the drawee is always a banker and a cheque is only payable upon demand

Whereas other bills of exchange are payable after a period of time specified therein, in the case of cheque it is payable only after a demand is made

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Special Contracts Similarities/ Dissimilarities between Promissory note, Bills of Exchanges and Cheques

The law makes it clear that all these instruments should be in writing

A cheque and a bill of exchange contain an order to the drawee to pay the money whereas the promissory note there is an undertaking by the maker to pay his creditor

Thus in the case of cheque and a bill of exchange the drawer makes an unconditional order on another person to pay the money, while in the case of the promissory note the drawer himself promises to pay

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Special Contracts However one common feature in the case of Promissory note,

Bills of Exchanges and Cheques is that the promise or order should be an unconditional one

The main difference between a cheque and a bill of exchange is that a cheque is always drawn on and is payable by the banker, while a bill may be drawn on any person firm or company

Thus only a customer of a bank having an account is entitled to draw a cheque on the banker, with the same branch of the bank where he has an account

A bill of exchange is generally drawn by the seller on his customer or a creditor on his debtor

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Special Contracts In the case of a promissory note, bill of exchange and a

cheque another similarity is that the amount of money to be paid must be certain and should be specified clearly

Promissory notes, bill of exchanges and a cheques must be payable either to order or to bearer

Time of payment: A cheque is always payable on demand while in the case of a bill of exchange and promissory note it must be payable after a period of time specified in the instrument

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Special Contracts A negotiable instrument is valid only if it bears the signature

of the drawer/promisor In the case of a cheque, signature of the drawer must tally with

the specimen signature given to the bank at the time of opening of account

In the case of a promissory note, bill of exchange they must be stamped while in the case of a cheque this is not required

The valuation depends upon the value of the note or bill If it is not stamped it cannot be admitted in evidence in case of

any disputes

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Special Contracts Another similarity in the case of promissory note, bill of

exchange and a cheque is that the holder of these instruments has the right to sue in his own name for the recovery of the amount mentioned in it

All negotiable instruments are transferable from one person to another

Thus the negotiable instrument confers upon the person who acquired it bona fide and for value good title to the instrument, in spite of any defect in the transferor's title

Such a person is called a holder in due course and he gets title against the entire world

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Special Contracts Concept of Negotiability

Illustration : Assume that A has sold his laptop to B for Rs 40,000/- on three months credit.

In order to ensure that B will pay the money after three months, A may write an order addressed to Bthat he has to pay after three months, for value of goods received by him, (i.e.Rs.40,000/) to A or anyone holding the order and presenting it before him (B) for payment.

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Special Contracts This order which A writes is called a Bill of Exchange, A

is the Drawer, B is the Drawee, This written document has to be signed by B to show his

acceptance of the order, then B becomes the acceptor Thus A can hold the document with him for three months

and on the due date can collect the money from B or Acan use the document for meeting different business transactions

Thus after a few days if A wants he can borrow money from C for a period of 2 months and pass on this document to C.

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Special Contracts For transferring the Bill of Exchange to C, A just has to write on

the back of the document an instruction to pay money to C, and sign it.

After doing so A has to deliver the Bill of Exchange to C The above said act of signing on the back of the document is

called endorsement, A is the endorser and C is the endorsee Now C becomes the owner of this document and he can claim

money from B on the due date. In the alternative, C can further pass on the document to D after

instructing and signing on the back of the document. This passing on process may continue further till the final

payment is made

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Special Contracts The ease at which the property in a document transfers from one

person to another signifies the negotiability of the instrument.This very often happens in the case of a cheque also if A issues a “ICICI Bank” cheque worth Rs. 5,000/ in favour of B,

then B can claim Rs. 5,000/- from ICICI Bank, (A-Drawer, ICICI-Drawee, B-Payee) or

B can transfer it to C to meet any obligation, like paying back a loan that he might have taken from C. (B-Endorser, C-Endorsee)

Once B transfers it, C gets a right to Rs. 5,000/- and C can transfer it to D if needed.

Such transfers may continue till the payment is finally made to somebody.

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Special Contracts

Dr. V.K. UnniPublic Policy & Management Group

Indian Institute of Management CalcuttaE-mail: unniv@iimcal.ac.in