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Theja (Lawyer)     02 November 2009

Agreement silent about few rights

Sometimes, we come across agreements which are silent about the assignment rights or termination rights of either of the parties. How shall we interpret provisions like that?

The general rule is that under any agreement, the parties agree to the terms and conditions provided thereunder. If they want a right like an assignment right they would have included the same under the agreement. So, if it is not there shall the presumption be that the rights are not there for the parties? Or is it a mere mistake by the advocate drafting it? Please clarify.


 8 Replies

Suchitra. S (Advocate)     02 November 2009

Sir, I think if there is no mention about a right in the agreement, then , it is a mistake in drafting. And one cannot presume a right to be there which is not there in writing.

advocate rajan pandurang joshi (Proprietor)     13 November 2009

In my humble opinion it is not correct to say that it is a mistake on the part of the Advocate. If a contract is silent on any particular aspect, then one will have to look as to whether that aspect is covered by the provisions of Indian Contract Act. Rights acquired under any agreement are movable properties and as such, though not mentioned specifically  in the contract may be assignable unless the rights and the obligations by their nature are required to be discharged personally e.g. getting a picture painted. One cannot assign only an obligation and assignement can has to be complete. If there is no speicific provision, then and in such event, unless there is an express embargo under any statute (since there is no provision in the contract), it will be left to the other party to the contract whether to recognize the assignee. In Transfer of Property Act there is provision relating to assignement of lease.

1 Like

DD Sathe (Contract Management)     25 December 2009

I concur with Shri. Joshi. If both parties agree, there is no problem in addressing any issue which is not specific. If dispute comes then only more specific provisions will have to be read! Normally preamble defining parties may have defined it as saying ---so and so means and includes permitted assigns---!!

1 Like

Ram K (Manager)     30 December 2009

Irrespective of the movable / immovable or general business agreement should cover rights of the parties unless other wise occur the problem at the time of non fulfilment of the contratual obligations. please ensure that before execution of the agreements whether we have convered the positive and negative factors, because clients are depending/beliving the lawyers on this role.

1 Like

Suresh CSLLM (Service)     02 March 2010

Being definate about the query, unless the performance under a agreemetn is very personal in nature i.e. only the executing party can perfom it, rights can be assigned by either party without permission of other party except there is a specific restriction in the Agreement.

pratima (advocate)     17 March 2010

it would amount to ambiguity, if at all either party wants to have certain rights they would have mentioned it in the agreement, but in this matter if they have not mentioned it would mean that the paries have mutually understood each other Or that there is a chance for litigation

Ashutosh Bhardwaj (Self)     15 April 2012

If anything is not in black & white:

Then it can be solved by one or the other way like

1. The Indian Contract Act,  provisions

2. The Partnerhip Act , provisions etc

others like Arbitrator etc.

It is not that if any point is silent , it is a mistake in drafting it may be art of drafting. 

Adv Rohit Dalmia 9324538481 (Lawyer)     25 May 2012

Incase the parties wants to incorporate those clause in the agreement, then the same could be done if the agreement has an amendment/modification clause in it. Both the parties can execute the supplementary Agreement and incorporate those clauses if required so that the rights of both the parties shall stand protected.

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