Express
and Implied Contract
An
agreement enforceable by law is a contract; Section 2 (h)
(a)
Definition
To
constitute an agreement, it was necessary that there was an unconditional offer
and sale was accepted by competent person or authority giving rise to accrual
of rights to parties to such agreement. Where a tenderer made an offer to
purchase certain property and attached conditions thereto, an agreement could
not come into effect unless conditions were also accepted by Authority issuing
tenders, Offer of tenderer having not been excepted by Authority, no right had
accrued to such tenderer on basis of his conditional offer.
(b)
Oral
A
contract can be entered into orally or in writing. Oral agreement would be
valid and enforceable as a written agreement provided it fulfilled all the
requirements of a valid contract. Oral agreement however, requires for proof
clearest and most satisfactory evidence. From the respondent had not signed any
of the documents or no document was duly signed by both parties, it cannot be
inferred that no valid agreement existed.
(c)
Parties necessary for contract
Since
a contract can only be bilateral and the same cannot be party on both sides,
there can hardly be a contract between a on the one side a and b on the other
side, particularly in a contract of employment.
A
contract may be made by more than two parties.
(e)
Agreement to contract is not a contract
Where
the parties agree to enter into a contract such an agreement is not a contract
in law at all. An agreement to sell per se does not create title in property.
Such agreement only creates a right to obtain another document. No registration
of it is requited even though it contains acknowledgment of receipt of earnest
money or party payment of price.
(f)
Not enforceable agreement
Contract
implies free and conscious agreement between two parties with regard to their
rights and liabilities arising out of a particular transaction. Contract binds
both the parties and such contracts are subject to the law of the land.
(g)
Promise without consideration
A
promise without consideration is unenforceable in a Court of law and cannot
amount to a contract between the parties.
(h)
Cancellation or alteration of contract
A
party to a contract is not entitled in law to cancel a concluded contract
unilaterally. Having entered into an agreement, it is not open to the defendant
to resale from the same on untenable grounds as he pleases. Therefore, such a
cancellation has no effect in law.
(2)
Promises, express and implied
In
so far as the proposal or acceptance of any promise is made in words, the
promise is said to be express. In so far as such proposal or acceptance is made
otherwise than in words, the promise is said to be implied. Section 9.
Promise
Offer
or proposal, in itself is not a ‘promise’ but would become a “promise” only
when it is accepted. “Promise” in itself could be equivalent of an agreement
whereas agreement enforceable by law is a contract. A contract may be either
express or implied. It may also be of mixed character that is partly express
and partly implied. The question whether a contract is express or implied is
one, the inference of which is to be drawn from the attending facts.
Express
contracts
An
“express contract” means the reciprocal promises contained in the words of the
contract or resulting from a true construction of them and excludes
stipulations, which may arise out of any usage or custom or which be inferred
from the conduct or course of dealings between the parties.
Implied
contract
A
promise which is excluded by the express terms of the contract cannot be
implied into it. A term may be “implied in a contract to repair an intrinsic
failure of expression. It is obvious that few contracts exhaustively deal with
all possible future contingencies, and that in a given case certain important
or even fundamental contingencies may have been overlooked which, if the
parties had thought of them at the time of making the contract, would have been
certainly provided for. Thus a covenant to repay is implied in every
transaction of loan.
Contingent
payment
A
person accepting money for appropriation upon a certain contingency is under an
implied promise to refund the same if the contingency does not arise and there
is no appropriation of the amount.
Mercantile
or local usage
Promises
which have not been made either expressly or impliedly by the offeree can be
imported into transaction under trade, mercantile or local usage wherever such
usage can be invoked.
Inference
from practice of parties
An
implied contract may be inferred from the conduct of the parties or a long
practice in their dealings. Where the course of dealings between A and B shows
that A to whom B was dispatching goods on account sale was debiting B with
losses arising not only on the consignments of his own goods but also on the
consignments of goods which belonged to his constituent and that B without
demur sent more goods in discharge of that liability; it was held that these
circumstances gave rise to the inference that B had undertaken a personal
liability for the losses incurred on the constituent consignments also.
Conduct
of Parties
Where
the contract between the gas supply company and the consumer envisaged an
increase in price in certain circumstances after negotiations. But on receiving
intimation of increase in the price of gas, even before this supply had
commenced the plaintiffs kept silent for almost two years, during which period
they received and paid bills at the revised price. In these circumstances the
doctrine of acceptance by silence would certainly appear to be applicable.
Therefore they could not challenge the increase after that period.
Sale
of immovable property
As a
general rule, in the case of immovable properties price is of the essence of a
contract of sale and unless the price is fixed there is no enforceable
contract, because if no price is named the law does not imply, as in case of a
sale of goods, contract on a reasonable price.
Contract
for work
Where
ever a contract for work is found to be invalid it is always assumed, unless to
express contract excludes it, that there is an implied contract to pay the
person, who has to do the work, a reasonable amount for the work done by him.
Principal
and agent
In
cases where the relationship of principal and agent subsists and agent’s claim
for extra remuneration on implied contract is enforceable.
Term
inconsistent with intention of parties
No
obligation can be implied in a contract inconsistently with its expressed
terms. A promise which is excluded by the express term on the contract cannot
be implied into it.
Extent
of Government contracts
It
is not competent to the Government to contract so as to fetter its freedom of
future executive action which it must have, to protect the welfare of the state
and no contract which would have such an effect can be implied against it.
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credit: www.minkenemploymentlawyers.com
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