college stuff > advanced contracts > Flashcards

advanced contracts Flashcards

(127 cards)

Study These Flashcards
1
Q

what are the justifications of a contract

A

principle of moral justification
principle of economic justification

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

what is paton’s quote on economic justification of contracts? [just rem the gist]

A

“Credit depends essentially on the ability to rely on the promises of others and can flourish only when there is a fully developed law of contract.”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What is the difference between interpretation and construction

A

Interpretation means the act of ascertaining the meaning of the language used.
Construction means the act of ascertaining the intention of the parties as expressed in the words used and its legal effect.
OR CONVERSELY
Interpretation = What do the words mean?
Construction = What did the parties mean legally by using these words? What is the legal consequence?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What are the two steps in the interpretation/construction of the contract?

A
  1. ascertaining the meaning of contract
  2. ascertaining its legal effects
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What are theories of interpretation of contracts?

A

Literalism: literal meaning
Objectivism: reasonable person test
Subjectivism: intention of the parties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

what are the rules in the interpretation of expressed/unexpressed/presumed intention?

A

express intention to be ascertained
unexpress intention to not be ascertained
presumed intention to be ascertained

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What are the materials that the court has to consider while interpretation?

A
  1. express terms
  2. implied terms
  3. relevant law
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What are the kinds of implied terms [as per prof granwille willians]?

A

The terms that the parties had in mind but didn’t take the trouble to do so
The terms that the parties would have expressed if the question were posed in front of them
The terms that the parties would have expressed if they had foreseen the difficulty

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What conditions are to be satisfied by the court while interpreting the implied terms?
in which case where these principles held?

A

Reasonable and equitable
Necessary to bring business efficacy of the contract
It should go without saying
Capable of clear expression
Should not violate any express terms

Case: B.P. Refinery (Westernport) Proprietary Limited v. The President Councillors and Ratepayers of the Shire of Hastings 1977

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

what is the most important factor for the courts to consider while considering implied terms?

A

necessity over reasonableness

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

The interpretation of contract is an _____

A

objective exercise

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

what is intention for the purpose of interpretation of the contract?

A

What is intention: For the purpose of the interpretation of
contracts, the intention of the parties is the meaning of the
contract. There is no intention independent of that meaning.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

what is the difference between interpretation of statutes and interpretation of contracts?

A

statutes: question of law
contract: question of fact and law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

in which case did lord hoffman decide teh principles of construction of contractual documents?

A

investers compensation society v. west bromwich building society

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

what is interpretation as per lord hoffman?

A

Interpretation is the ascertainment of the meaning which the document
would convey to a reasonable person having all the background
knowledge which would reasonably have been available to the parties in
the situation in which they were at the time of the contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

what is meant by matrix of fact as per lord wilberforce?

A

The background was famously referred to by Lord Wilberforce as the
“matrix of fact,” but this phrase is, if anything, an understated
description of what the background may include. Subject to the
requirement that it should have been reasonably available to the parties
and to the exception to be mentioned next, it includes absolutely anything
which would have affected the way in which the language of the
document would have been understood by a reasonable man.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

what all is exlcuded form interpretation as per lord hoffman’s principles? what is the exception?

A

The law excludes from the admissible background the previous
negotiations of the parties and their declarations of subjective intent.
rectification

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

as per which article of the indian contract act uncertain agreements are void?

A

section 28

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

in interpretation, what would prevail - intention or the words?

A

interpretation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

which act talks of rectification of contracts?

A

specific relief act section 26

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

what would prevail - meaning of the words or meaning of the document?

A

meaning of the document

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

what is the relevance of mannai co investments ltd v. eagle star life insurance?

A

the background may also help us to conclude that there were some errors and interpret them in to make sense of the contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What did lord diplock assert in relation to interpretation of contratcs in the antaios compania neivera S.A v. Selen Rederierna?

A

General rule: no mistake has been made
However if a mistake has been made, the courts cannot give it illogical interpretation that the parties could not have intended.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

what is known as piercing the semantic veil?

A

intention to prevail over the words if the words are ambiguous

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
what is the meaning of literal as per rule 3? what is rule 3
words are to be given literal and popular interpretation that includes: 1. parties own dictionary 2. acquired meaning 3. popular meaning 4. dictionary meaning
26
When is extrinsic evidence admissible
1. foreign document 2. ancient document 3. technical or scientific 4. to ascertain the true nature of the document 5. to ascertain the surrounding circumstances 6. to derive the popular meaning
27
what is meant by “cum duo inter se pugantia reperiuntur in testament ultimum return est
in a will later clauses will prevail
28
what is the contra preferentum rule
If 2 intepretations are possible, one favourable to party who has drafted the contract and other against them, the interpretation against that party has to be preferred.
29
when is contra preferentum rule applicable?
in case of ambiguity when there are two interpretations possible
30
what is the rule of last resort?
contra preferendum
31
in cases of ambiguity of consumer contracts, which rule of interpretation applicable?
interpretation favourable to the consumer
32
what was held in the Kensland Realty Ltd v Whale View Investment Ltd [2001]
contra preferendum - favour the other party even if time is of the essence, the seller has to give time to the buyer.
33
what is the wallis v. pratt case related to?
contra preferentum
34
what is the gruhn v. balgray investments case related to?
contra preferentum
35
what are the ways employed by the court to "save the document"
Restricting Supplying Transposing Rejecting Modifying Correcting grammatical errors
36
what is the industrial promoters investment corporation of orissa v. new india assurance co?
contra preferentum against insurance companies
37
what was held in the haris marine products v. export credit guarantee corporation?
contra preferuntum against insurance companies, standard insurance policies, boilerplate contracts
38
handwritten or printed? and handwritten or typed
handwritten
39
printed clauses or typed clauses - what would prevail?
typed clauses
40
what is the hierarchy of interpretation in printed terms, typed terms, cyclostyled amendments and handwritten amendments
printed terms cyclostyled anendments typed terms handwritten amendments
41
which case stipulated that hierarchy between printed terms, typed terms, cyclcostyled amendments and handwritten amendments?
MK Abraham v. state of kerela
42
what was held in the robertson v. french case?
handwritten > printed
43
When a contract has multiple annexures or attachments made at different times, which one prevails?
If there is no contrary intention, the later document (in time) usually prevails over the earlier one.
44
what is meant by expressio unius est exclusio alterius
express terms negative implied terms
45
which rule is an expression of the term ‘what is left unexpressed was in all probability not intended at all’.
expressio unius est exclusio alterius
46
what is the allen v. emerson case related to?
ejusdem generis
47
what is the wilson v. whately case related to?
ejusdem genersis
48
what is the lambourn v. mclellan case related to?
ejusdem genersis
49
which case is related to tillmans and co v. knutsford ltd?
ejusdem generis
50
what is the cosco bulk carrier co ltd v. team up owning co ltd related to?
ejusdem generis
51
what is meant by ut res magis valeat quam pereat?
if an interpretation gives meaning to all clauses and another renders one of nugatory, the first will prevail.
52
what is meant by reddendo singula singulis? in which case was it referred to?
referring each to each nabha power ltd
53
Which constitution article governs government contracts?
Article 299 A contract with the union or state govt will be binding only when: [299(1)] Must be expressed as executive powers of the union or state It must be made in the name of the president or governor It must be executed on behalf of the president or governor It must be executed in the manner and by such persons as authorised by the president
54
What does article 299(2) say about the liability of the president and governor?
President and governor will not personally liable Any person executing on their behalf shall also not be personally liable This exemption is only personal and does not exempt the government.
55
What is the purpose of article 299?
To protect the govt from unauthorised contracts To protect the interests of the parties from unauthorised govt contracts
56
What is the implication of the word executed in article 299?
The contract should only be in writing - Bhikraj jaipuria v. UOI
57
Can there be implied contract between the govt and another party?
No, as per KP Chaudhary v. State of MP
58
Does there need to be a formal contract between the govt and another party?
No, as per UOI v. Rallia Ram
59
How can authority be granted to execute contract on behalf of the govt?
Rules Formal notification Special orders It could also be conferred by the president/governor on someone not notified as per the rules There is no specific mode as per which authority is to be conferred Authority could also be conferred on an ad hoc basis
60
Is article 299 mandatory? What happens when article 299 is not adhered to?
It is mandatory, and a contract is void and unenforceable if not followed This was held in bhikraj jaipuria v. UOI
61
What happens when an unauthorised person makes a contract?
Contract is void as held in UOI v. NK Pvt Ltd.
62
Is article 299 applicable on statutory contracts?
No, article 299 is only applicable on executive contracts and not statutory contracts This was held in two cases namely - steel authority of India v. state of MP and state of haryana v. lal chand.
63
Can an unauthorised contract (as under article 299) be ratified?
No, as held in mulam chand v. state of MP
64
Does the principle of estoppel apply on unauthorised contracts?
No, as held in mulam chand v. state of MP
65
Which principles have been held in ramana dayaram shetty v. international airport authority? [4 principles]
Govt does not have open or unrestricted choice when it comes to awarding contracts Govt has some discretion but it has to adhere to some reasonable and non discriminatory standards It cannot stray away from these standards It can stray away from these standards provided it is not arbitrary to do so, and even this straying is based on some standard that is not unreasonable, discriminatory or irrational.
66
What are all the principles laid by various judgements governing the award of contracts?
Govt has to lay down some reasonable and non discriminatory norms Govt cannot stray from these norms Govt cannot award contract to someone who is not eligible - otherwise it would be irrational and unreasonable - this arises from article 14 and administrative law Govt has to issue tenders and only can stray away from this if there is good reason Govt cannot give eligibility criteria favouring one bidder Govt has some discretion and is open to opinions and differing views but it is still subject to certain legal and continuing norms.
67
What are the advantages of competitive bidding for the government?
Fair opportunity Best person without compromising quality of work Eliminates discrimination or favoritism
68
What is the scope of judicial review in matters of contractual matters of the state?
State has to be just and fair bcs matters are of public importance and therefore article 14 may be invoked making them open to judicial review.
69
What was held in tata cellular v uoi in relation to judicial review in contractual matters of the state?
Judicial review only in the following cases: Illegality Irrationality Procedural impropriety
70
Can a writ petition be invoked in matters of award of contract?
ya
71
Can a writ petition be filed in matters of enforcement of rights and obligations arising out of contracts? In which cases was this held?
No, as this is related to the terms of the contracts whereby the parties will have to refer to indian contract act. This was held in two cases: Radhakrishnan agarwal v. state of bihar State of punjab v. balbir singh
72
Which section of the contracts act will apply in the above mentioned cases?
Section 73, 74 and 75 of the contracts act would be applicable which deals with quantum of damages in breach of contracts. This was held in thwardas perumal v. uoi
73
Can a writ petition be filed in cases with elements of public law even if it is a contractual matter?
Yes, this was held in sterling computers ltd v. M and N publications ltd.
74
What are the fundamentals of public procurement?
To arrest corrupt practices To promote competition To be fair and equitable to the bidders To be efficient, economic and To get the best price for commensurate quality
74
What is meant by public procurement?
Acquisition which could be done by various means and it could be done directly or through some entity.
74
What are the methods of procurement?
Government e market place Procurement without quotation Procurement by purchase committee (request for quotations) Competitive bidding/tending process Electronic reverse auctions
74
What is the benefit of the government e market place?
It allows for verified vendors and bidders + it is for both goods and services
75
When is procurement without quotation valid?
Goods value: up to 50,000 Rule 154 of GFR rules, 2017
76
When is procurement by the purchase committee valid?
This is eligible when the goods are not available in the GEM market Goods value: above 50,000 and upto 5 lakh This will be done by a locally instituted purchase committee of 3 members.
77
When is the competitive bidding/tendering process valid?
When the value of goods is above 5 lakh
78
How does electronic reverse auctions work?
Reverse auctions: successively lower prices Regular auctions: successively higher prices are offered
79
What is domestic tendering/national competitive tendering? When is it resorted to?
Geographically limiting the boundaries of the bidders within the country. It is resorted to when it is labour intensive, geographically spread out or when materials can be sourced locally.
79
What is global tendering/international competitive bidding?
When international bidders can also take part. It is resorted in the following cases: When the material is not available in india When the costs are very high When the subject matter is highly technical Could also be done when there is no difference in price between the indian and foreign markets
80
What is the fiscal limit given to choose between global or domestic tendering?
If the price is below 200cr domestic tendering is to be chosen.
80
What are the different types of tendering based on process and value?
re the different types of tendering based on process and value? Open tendering process Limited tendering process Single tendering process
80
What is open tender or an advertised tender inquiry?
This is advertised tender where it is open for all to bid. The tender is issued with relevant documents on places like the GEM.
80
What considerations to be taken while deciding between global or domestic tendering?
GFR rules + decided by executive
81
What is the monetary limit of the open tendering process?
The estimated price of goods to be above 50 lakh
81
What is a limited tender?
A group of venders are empanelled and the invitation is issued only to these vendors.
81
What is the monetary limit to the limited tender process?
5 lakh to 50 lakh
81
When is a limited tender issued even if the estimated value is above 50 lakh?
When there is urgency When suppliers are already known When it is known that only the suppliers would have it.
82
What is a single tender system?
Urgency and reasons have to be given Only one vendor has it They have IP rights It is a proprietary article To maintain standardization of machinery
83
What is the value of the EMD?
EMD is usually 2 to 5% of the estimated price
84
What are the steps of a tendering process?
[generally procuring entity choses who will bid] Expression of interest/RFQ (request for qualification) Evaluation of the eligible bidders RFP/NIT Pre bid conference Submission of bids Technical bid and financial bid submitted Non responsive bids, technically disqualified bids and technically qualified bids Financial bids of the technically qualified are opened Lowest value accepted/or the most advantageous Letter of acceptance or LOA given
85
What is earnest money deposit? What is time period of EMD?
This is the bid security that is paid by all the bidders to ensure that only genuinely bidders participate. It is usually 30 to 40 days more after the successful bid granting.
86
What is the value of the EMD?
2-5% if the estimated amount
86
What is the performance security? What is the time period of performance security?
This is the amount deposited by the successful bidder as security for proper performance. The earnest money can be enchashed performance security is not paid. Its validity is 60 days after the completion of contractual obligations.
86
86
86
86
what is the value of the performance security?
3-5% of the contract value
87
NHAI v. Ganga Enterprises 2003
section 5 and forfeiture of EMD can coexist
88
Mountford v. scott
if premium is paid to keep the offer open, withdrawal is not allowed as it is a consideration.
89
NG Projects ltd. v. Vinod Kumar Jain
bank guarantee - jharkhand wrong bid case - held: HC cannot act as an appellate court and only under - illegality, irrationality and procedural impropriety can the HC interfere. HC’s should not interfere in infrastructure projects
89
Raunaq international v. IVR construction
for the courts to interfere it should be a matter of public interest or some mala fide
89
What are the commercial considerations taken by the state as per raunaq international?
Price Whether goods are of requisite specifications Ability of the bidder to finish project Past experience Time taken to complete Ability to take follow up action
89
What are some elements of public interest as per the raunaq international case?
Public money Public purpose Public would be interested in its timely fin and would be interested in quality work
89
When can a court interfere in contractual matters of the state as per the raunaq international case?
Public interest Mala fide Price difference cannot be a consideration
90
What did the court conclude in tata cellular v. uoi when it comes to judicial review of contractual matters of the state?
Court does not sit as a court of appeal Court cannot recommend, guide or command the exec to do something The government must have freedom to contract Interference of the court leads to administrative burdens
91
What did the raunaq case mention on the qualification criteria decided by the state?
Qualifying criteria should be realistic so that need doesn’t arise to revise it If revision is required, it should be done clearly and unambiguously
92
What is a single envelope system?
Both the bids are put in one envelope
93
What is two envelope system?
Technical bid and financial bid
94
What is a three envelope system?
95
What is a two stage bidding? When is it done?
In cases of new technology, uncertainty about the technical qualifications or to freeze the technical qualifications. It is when in the first stage, unpriced technical qualifications are submitted. Then in the next stage, the bidders who are selected will submit their final technical bids and financial bids of the selected bidders are submitted.
96
what is the value of limited tender?
5 to 50 lakh
97
what is the value of open tender?
above 50 lakh
98
⁠⁠nabha power ltd v. pspc
implied terms should include the following: (1) it must be reasonable and equitable to imply terms; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that “it goes without saying”; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract coal case
98
dda v. durga das kaushish 1973:
lease renewal - ignore the uncertainty to give light to the true nature of the document Where a subsequent clause comes into conflict with an earlier clause, then the earlier would prevail - the earlier clause mentions "at the end of the term" if provisio is against the main document, the main document would prevail. enhancement of lease case
98
R.D. Shetty Judgement: Ramanna Dayaram Shetty v. International Airport Authority
98
what is the officious bystander test?
something that is so obvious and capable that it wouldn't need to be added
99
what is held in shrilekha vidhyarthi v. uoi
the SC has said that **State has to act justly, fairly and reasonably** even in contractual field, as in such cases public-element is always present so as to attract art 14, and such matters are open to judicial review. Therefore, contractual actions of the State may be questioned as arbitrary in proceedings under art 32 or 226 of the Constitution
100
tata cellular v. uoi
examined powers of judicial review of the state courts can interfere in cases of mala fide or arbitrariness but there some limitations courts can interfere in; 1. illegality 2. irrationality 3. procedural impropriety
101
as per which case the state should not be unjustly unriched and the quasi contracts should also be compensated by the state
state of west bengal v bk mondal
102
as per which case - section 70 of the indian contract does not nullify art 299, but supplements it
new marine coal v. uoi
103
contract document should be executed within how many days after the letter of acceptance?
Contract document, where necessary, should be executed within 21 days of the issue of letter of acceptance
104
Letter of Intent merely indicates a party’s intention to enter into a contract with the other party in future. A Letter of Intent is not intended to bind either party ultimately to enter into any contract.’
Dresser Rand SA v Bindal Agro Chem Ltd and KG Khosla Compressors Ltd
105
The Letter of Intent merely expresses an intention to enter into a contract which case
Rajasthan Co-operative Dairy Federation Ltd v Maha Laxmi Mingrate Marketing Service Pvt Ltd
college stuff
flashcards
Decks in class (12)
# Cards
Brainscape helps you reach your goals faster, through stronger study habits.
© 2026 Bold Learning Solutions. Terms and Conditions