Srinivasan
17 November 2012 at 13:05
Dear Experts,
We all know the Essentials Elements of a Valid Contract:
1. Proposal and acceptance
2. Consideration -- lawful consideration with a lawful object
3. Capacity of parties to contract -- competent parties
4. Free consent
5. An agreement must not be expressly declared to be void.
6. Writing and Registration if so required by law
7. Legal relationship
8. Certainty
9. Possibility of performance
10. Enforceable by law.
Having known and said that every Contract must be Enforceable by Law, Herewith Iam putting forward you all a question on a Particular Condition which keeps the Arbitrators, Jusrisdiction, Adjudication vide High/ Supreme Court away from the picture by introducing a new Condition/ system called "EXCEPTED MATTERS" and how can this become a Valid Contract in the first place?
As we all know the explanation of the same which is copied below:
Enforceable by Law:
A contract in order to be valid must be enforceable by law which element distinguishes agreement and contract. If it is enforceable by law it is contract otherwise it is an agreement. The aggrieved party should be able to obtain relief through law in the event of breach of contract. An agreement can also be inferred from correspondence exchanged between the parties.
If the so-called "Excepted Matters" are introduced in a Contract and agreed by both Contracting parties which clearly keeps away the above legal proceedings, then what is the remedy available to the aggreived party (Contractor) when there is an unsettled Dispute.
In other words, I shall try to put the point wise scenario for better understanding:
1. A dispute is established by the Contracted parties (due to the breach of Contract) which is an Excepted Matter under the Contract.
2. An in-house remedy is available in the Contract in order to treat them as "Excepted Matters"
3. In-house remedy did not provide a fair and reasonable solution to settle the Dispute.
4. Due to the same being an "Excepted Matter", the said matters cannot be Arbitrated/ Adjuducated.
The same scenarios happened and are still happening in many cases across our country and there are several Judgments awarded in favour of the Employer who has drafted such discriminatory Conditions...One of a similar case became a Landmark Judgment which is Union of India Vs. Sarvesh Chopra (IN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO. 1791 OF 2002(Arising out of SLP© No.20727/2000)
Now what is the solution? Do you think the above Judgment is correct?
I further and fully understand that, if this is what the Conditions agreed for, Court cannot interfere or are not available to re-negotiate with the Parties. But my fundamental question is
1. Whether such agreements are Valid?
2. Can the Employers draft such conditions to keep the Legal system away from the Business?
3. Based on Good-faith, several Contracts are being executed in India, Is Good-faith not entertained in this Country?
4. If such Contracts are Void, then what happens to such Void Contracts (on this Ground)?
Now, when we talk about discriminatory Conditions drafted with supreme bargaining power, what happens if there is no Justice given to the Contracted Party.
Can anyone provide me with a resaonable solution or ways to take the Dispute to Court, since there is no prima-facie available apart from this to quash this Contract under the Law.
Kind regards,
Srinivas
Legality of a constrcution contract
Dear Experts,
We all know the Essentials Elements of a Valid Contract:
1. Proposal and acceptance
2. Consideration -- lawful consideration with a lawful object
3. Capacity of parties to contract -- competent parties
4. Free consent
5. An agreement must not be expressly declared to be void.
6. Writing and Registration if so required by law
7. Legal relationship
8. Certainty
9. Possibility of performance
10. Enforceable by law.
Having known and said that every Contract must be Enforceable by Law, Herewith Iam putting forward you all a question on a Particular Condition which keeps the Arbitrators, Jusrisdiction, Adjudication vide High/ Supreme Court away from the picture by introducing a new Condition/ system called "EXCEPTED MATTERS" and how can this become a Valid Contract in the first place?
As we all know the explanation of the same which is copied below:
Enforceable by Law:
A contract in order to be valid must be enforceable by law which element distinguishes agreement and contract. If it is enforceable by law it is contract otherwise it is an agreement. The aggrieved party should be able to obtain relief through law in the event of breach of contract. An agreement can also be inferred from correspondence exchanged between the parties.
If the so-called "Excepted Matters" are introduced in a Contract and agreed by both Contracting parties which clearly keeps away the above legal proceedings, then what is the remedy available to the aggreived party (Contractor) when there is an unsettled Dispute.
In other words, I shall try to put the point wise scenario for better understanding:
1. A dispute is established by the Contracted parties (due to the breach of Contract) which is an Excepted Matter under the Contract.
2. An in-house remedy is available in the Contract in order to treat them as "Excepted Matters"
3. In-house remedy did not provide a fair and reasonable solution to settle the Dispute.
4. Due to the same being an "Excepted Matter", the said matters cannot be Arbitrated/ Adjuducated.
The same scenarios happened and are still happening in many cases across our country and there are several Judgments awarded in favour of the Employer who has drafted such discriminatory Conditions...One of a similar case became a Landmark Judgment which is Union of India Vs. Sarvesh Chopra (IN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO. 1791 OF 2002(Arising out of SLP© No.20727/2000)
Now what is the solution? Do you think the above Judgment is correct?
I further and fully understand that, if this is what the Conditions agreed for, Court cannot interfere or are not available to re-negotiate with the Parties. But my fundamental question is
1. Whether such agreements are Valid?
2. Can the Employers draft such conditions to keep the Legal system away from the Business?
3. Based on Good-faith, several Contracts are being executed in India, Is Good-faith not entertained in this Country?
4. If such Contracts are Void, then what happens to such Void Contracts (on this Ground)?
Now, when we talk about discriminatory Conditions drafted with supreme bargaining power, what happens if there is no Justice given to the Contracted Party.
Can anyone provide me with a resaonable solution or ways to take the Dispute to Court, since there is no prima-facie available apart from this to quash this Contract under the Law.
Kind regards,
Srinivas