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Shail Tiwari   11 April 2020

comment

there cannot be a contract to make contract? explain.


 3 Replies

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     12 April 2020

A contract may consist of several parts; it may be divisible into several promises based on several considerations, and then the illegality of one or more of these considerations will not avoid all the promises if those which were made upon legal considerations are severable from others.

 

 In Pigot's case (1614) 11 Coke Rep 270 it was held:

 

that if some of the covenants of an indenture or of the conditions endorsed upon a bond are against law, and some good and lawful; that in this case the covenants or conditions which are against law are void ab initio and the others stand good.

 

Similarly, Gaskell v. King (1809) 11 East 165 and Shackell v. Rosier (1836) 2 Bing N C 634 are authorities for holding that if a contract contains distinct covenants some of which are legal and others illegal, the Court can enforce the legal ones; but if the covenants are not severable the whole contract is void for illegality; as also if there is one promise made upon several considerations some of which are legal and others illegal. In Pickerring v. Illfracombe Ry. (1868) 3 CP 250, the law on the subject was thus stated:

 

where you cannot sever the illegal part of a covenant the contract is altogether void, but where you can sever them, whether the illegality be created by Statute or Common law, you may reject the bad part and retain the good.

 

Section 24, Contract Act, enacts a similar rule. It lays down that if any part of a single consideration for one or more objects, or any one or any part of any one of the several considerations for a single object is unlawful, the agreement is void. In Mulla and Pollock's Commentary on the Indian Contract Act it is said that it is well settled that if several distinct promises are made for one and the same lawful consideration, and one or more of them be such as the law will not enforce, that will not of itself prevent the rest from being enforced. The test will be whether a distinct consideration which is wholly lawful can be found for the promise called in question. Pollock and Mulla's Contract Act, Edn. 6, p. 187.

 

Now, the first question which arises from consideration in this case is as to whether or no, there is a personal covenant to pay in the deed set up by the plaintiff. The learned Counsel for the appellant has contended that in the deed there is no such covenant. Alter a perusal of the deed in question, I am clearly of opinion that there is a distinct personal covenant to pay. The executant admits in the deed that a sum of Rs. 20,000 has been advanced to him and he undertakes to repay it on demand. This covenant is quite distinct and separate from the other part of the agreement under which the (sic) gives security for the payment of the amount due from him.

Shail Tiwari   13 April 2020

thanks your answer very useful for me.

Kathy   17 November 2020

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