In simple terms: Partnership is the bond between two or more people who have agreed to carry on some work for profit. It is based on mutual consent.
Definition: According to Section(4) of the Indian Partnership Act 1932, defines ‘Partnership- as the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all’. Some of the important features of the partnership are as follows:
- Contract: It is the result of a contract, it does not arise from the status, operation of law or inheritance. Which means in order to have a partnership , you need to create a contact i.e an agreement enforceable by law.
For example: Death of father, who was a partner in a firm, the son can claim share in the partnership property but cannot become a partner unless he enters into a contract.
- Association of two or more persons: As partnership is the result of a contact, at least two persons are necessary to constitute a partnership. It states that for a partnership firm , minimum number of person required are two because contract is signed minimum by two persons.
But sec 11 of Company’s act -1956 states that partnership consisting of more than 10 persons for banking business and 20 persons for any other business would be illegal.
- Carrying on a business: Partnership only for friendship means or charitable work is not a partnership firm . Partners must agree to carry on a business.”Business includes every trade, occupation or profession”.
- Sharing of profits: Agreement to carry on business must be with the object of sharing profits amongst all the profits. Thus there will be no partnership where the business is carried on with a philanthropic motive and note for making a profit or where only one of the partners is entitled to the whole of the profits of the business.
Sharing of loss is not necessary.
- Mutual Agency: Business must be carried on by all the partners or any of them acting for all, i.e there must be mutual agency . Thsu every partner is both an agent and principle for himself and other partners i.e he can bind by his acts the other partners and can be bound by the acts of other partners in the ordinary course of action.
Bailment contracts are a contract where one party delivers goods to the other party upon the return basis in order to fulfil a specific purpose is called bailment contracts. It includes two parties ; bailee and bailer.
- Bailer: The bailer is a person who is delivering the goods.
- Bailee: The person to whom the goods are delivered.
Types of Bailment Contracts:
Generally bailment contracts are classified into:
- Gratuitous Bailment: These are contracts where only one party is benefited i.e one directional consideration.
Example: If Ram is going to abroad for further studies and he hands over his old bicycle to his friend shyam for safe custody. Here only bailer (Ram) is benefited.
- Non-Gratutious Bailment: In this case both the parties are benefited i.e it is a two directional consideration.
Example: B hands over his clothes to D (laundary owner) for washing purpose. Here B(bailer) is awarded with clean clothes and D(bailee) gets the payment of his service.
Rights of Bailor:
- Enforcement of bailee’s duties
- Right to claim damages for loss caused to the goods bailed by bailee’s negligence.
- Right to claim compensation for any damage arising from or during unauthorised use of the goods bailed.
- Right to claim compensation for any loss caused by the unauthorised mixing of goods bailed with his own goods.
- Right to claim any natural accretion to the goods bailed.
- Right to terminate bailment if the bailee uses the goods wrongfully.
- Right to demand return of goods in case of gratutious bailment.
Rights of Bailee:
- Enforcement of bailors duties
- Right to claim damages for loss arising from the undiscovered faults in the goods bailed.
- Right to claim reimbursement for extraordinary expenses incurred in relation to the things bailed.
- Right to indemnify for any loss suffered by him by reason of defective title of the bailer to the goods bailed.
- Right to claim compensation for expenses incurred for the safe custody of the goods if the bailor has wrongfully refused to take delivery of them after the term of bailemt is over.
- Right to deliver goods to one of several joint bailor.
- Right to deliver goods, in good faith, to bailor without title.
- Right of lien( Right of retaining goods till the debts are paid)
Breach in general terms is caused when either of the party does not follow the terms and conditions of the contract signed.So when once a contract is broken there needs to be some compensation for the grieved party(one who has not broken the contract).Thus in order to compensate the loss, Damages are given.Whereas, damages are monetary awards and can include several types:
- COMPENSATORY DAMAGE: These are damages for a monetary amount that is intended to compensate the non-breaching party for losses that result from the breach. The aim is to “make the injured party whole again”. There are two types of compensatory damages:
- Expectation Damages: These are damages that are intended to cover what the injured party expected to receive from the contract. Calculations are usually straightforward as they are based on the contract itself or market values.
- Consequential Damages: These are intended to reimburse the non breaching party for indirect damages other than contractual loss; for example, loss of labor and profits due to an undelivered machine.
- LIQUIDATION DAMAGE: Damages that are specifically stated in the contract. It is based on the mutual consent of both the parties. These are available when damages may be hard to foresee and must be a fair estimate of what damages might be if there is a breach.
- PUNITIVE DAMAGE: These are damages that are intend to punish the breaching party and to deter him or her from committing any future breaches. They are rarely awarded in contract cases, though they may be available in some fraud or tort cases that overlap with contract law.
- NOMINAL DAMAGE: These are damages that are awarded when the injured normally does not actually incur a monetary loss, but the judge wants to show that the winning party was in the right and might want to set an example.
Note: These are typically rarely awarded in contract cases because breaches of contract usually involve some sort of loss to one party.
- RESTITUTION: These are not really legal damages per se, but rather are an equitable solution provided to prevent the breaching party from being unjustly enriched. For example, if one party has delivered goods but the other party has failed to pay, the party that delivered the goods may be entitled to restitution, i.e. the cost of the delivered goods, in order to prevent the unjust enrichment.
Breach of contract is a legal cause of action in which a binding agreement or bargained for exchange is not hovered by one or more of the parties to the contract by non performance or interference with the other party’s performance. If the party does not fulfill his contact promises or has given information to the other party that he will not perform his duty as mentioned in the contract or if by his action and conduct he seems to be unable to perform the contract, he is said to breach the contract.A breach of contract is where a party to a contract fails to perform, precisely and exactly, his obligations under the contract. This can take various forms
For example, a)the failure to supply goods or perform a service as agreed.
b) A agrees to dine at B house but for some reason he fails to attend the dinner. So there is no breach of contract because it was on mutual consent but no legal obligation .Whereas if the agreement was bonded with the legal terms, and if then A fails to attend the dinner it becomes a breach of contract.
A contract being a correlative set of rights and obligations for the parties would be of no value, if there were no remedies to enforce the rights arising there under. The Latin maxim Ubi jus, ibi remedium denotes where there is a right, there is a remedy. Where the promisor neither performs his contract nor does he tender performance, or where the performance is defective, there is a breach of contract.
Types of breach of contract
(i) Actual: The actual breach may take place either at the time the performance is due, or when actually performing the contract.
(ii) Anticipatory: The anticipatory breach, i.e., a breach before the time for the performance has arrived. This may also take place in two ways, by the promisor doing an act which makes the performance of his promise impossible or by the promisor in some other way showing his intention not to perform it.
Breach of contract may occur, before the time for performance is due. This may happen where one of the parties definitely renounces the contract and shows his intention not to perform it or does some act which makes performance impossible. The other party, on such a breach being committed, has a right of action for damages. He may either sue for breach of contract immediately after the breach is made or wait till the actual date when performance is due and then sue for breach. If the promisee adopts the latter course, i.e., waits till the date when performance is due he keeps the contract alive for the benefit of the promisor as well.
We have been studying about the oxford definition and some others given by scholars for the term business law. But to understand the crux we need to go deep down the literal meaning of the term. We need rules and regulations in order to prevent our society from chaos. A society free from loot, robbery, murder etc. Thus our ancestors had a thought of punishing people who were found guilty for any charge. And as a result gradually we discovered certain norms for different kinds of crimes and thus establishing a peaceful society. Similarly we needed some norms for the smooth running of traders business and merchants deals. Consequently leading to additional rule book for merchants.
According to Oxford dictionary the word Law means: “Rules made by authority for the proper regulation of the community or society for the correct conduct in life” .Law has a view to secure justice, peaceful living and social security.
The term ” Mercantile Law Or Business Law” may be defined as that branch of law which comprises laws concerning trade, industry and commerce.
Points to remember:
- Law is always enforced by an authority.
- It is ever changing and growing as per the need of the time.
- Law helps in smooth functioning of society, trade or commerce. because it binds people with rules and regulations.
Sources of Mercantile Law( Business Law)
- Lex Mercatoria :It is a Latin expression for a body of trading principles used by the merchants throughput the Europe in the medieval. It functioned as the international law of commerce.The English Mercantile Law constitutes the foundation on which the super structure of the Indian mercantile law has been built.
- Statutory Law: Statutory law is a written law set down by the legislature or other governing authority such as the executive branch of the government improve civil order to codify existing law, or for an individual or company to obtain special treatment. In context to India, all laws are statutory i.e when Bill is passed by the parliament and signed by the President of India, it becomes an “Act” or a “Statute”.The bulk of Indian Mercantile Law is statute law.
- Customs and Usage: Precedent is the accumulated principles of law derived from centuries of decisions. Judgments passed by judges in important cases are recorded and become significant source of law. When there is no legislature on a particular point which arises in changing conditions, the judges depend on their own sense of right and wrong and decide the disputes from first principles. Authoritative precedent decisions become a guide in subsequent cases of a similar nature. The dictionary of English law defines a judicial precedent as a judgement or decision of a court of law cited as an authority for deciding a similar state of fact in the same manner or on the same principle or by analogy.
- Judicial Decisions: Judicial decisions are usually referred to as precedents and an binding on all courts having jurisdiction lower to that of the court which gave the judgement. They are also generally followed even by those of equal jurisdiction in deciding similar points of law.Whenever an Act is silent on a point or there is ambiguity,the judged has to decide the case according to the principles of justice, equity and good conscience.
We have always been listening to the stories of Sita abduction and Ravana undying desire of power. But there is lot more to know about it. Ranging from the birth of our hero (Rama) and heroine (Sita) after we are left with some golden hair strands of Sita in earth. The Ramayana is just not the story, it has more to offer in every aspect of society.
- 1.Male Dominance: Many women were killed or mutilated on the grounds of them being demons: Taadka is the first among them and Surpanakha is the most well-known. And the list doesn’t stop here, others such as Ayomukhi, Simikha, Surasa, Lankini etc. The interesting part is all are the metaphors for wild and untamed nature. There is clearly acceptance of male violence against woman. The incident of Mandodari marrying Vibhishana after Ravana death is also the symbol of escaping from the Sati Prtha.
- Origin of Caste System: Ramayana has very cleverly established the Varna (caste) system in our society. The origin of rules started from the age of “Prithu”. And forming the rules and regulations for the perfect king. Ramayana also established the guidelines for the expected behaviour of the King. We are well known about the fact of aham and atma . Aham is the imagined notions of who we are and how we want others to see us.
- The Shiva Bow: The well versed chapter of Sita swaymavar is known to all, but the history of Shiva bow lies with goddess Shakti. As Shiva is the supreme tapasvi, had destroyed hunger. The hunger which is originated from the man’s desire. Thus in order to satisfy that hunger , a man conducts yagna and tapasya. Whereas yagna is done without tapasya, we exploit other people’s hunger to satisfy our own. Thus a corrupt society comes into existence.
Tapasya is like the shaft of the bow. Yagna is like the string of the bow.Individually they do not create a bow. Thus Shakti and Shiva joins yagna and tapasya, forming a bow . Which is also a symbol of all the relationships in the world.