'Moveable (6.) 'Moveable property' shall mean property of every deproperty. scription, except immoveable property; 'Her (7.) Her Majesty' shall include Her heirs and successors Majesty.' to the Crown; (8.) British India' shall mean the territories for the time being vested in Her Majesty by the Statute 21 & 22 Vic., cap. 106 (An Act for the better government of India), other than the Settlement of Prince of Wales' Island, Singapore and Malacca ; (9.) Government of India' shall denote the GovernorGeneral of India in Council, or, during the absence of the Governor-General of India from his Council, the President in Council, or the Governor-General of India alone, as regards the powers which may be lawfully exercised by them or him respectively; (10.) 'Local Government' shall mean the person authorised by law to administer executive government in the part of British India in which the Act containing such expression shall operate, and shall include a Chief Commissioner; (11.) High Court' shall mean the highest Civil Court of appeal in such part; 6 (12.) District Judge' shall mean the Judge of a principal Civil Court of original jurisdiction; but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction; (13.) 'Magistrate' shall include all persons exercising the technical division of property is land to him, 6 N. W. P. 129; a decree for sale of mortgaged land, 9 Bom. 64. As to what is immoveable property by Hindú law (slaves, charges on land), see 9 Bom. H. C. 222; the office of a hereditary priest to a temple, 6 Bom. H. C., A. C. J. 137; but not a Government promissory note, 5 Suth. Civ. R. 141. 1 The word 'include' here and elsewhere in this section is enumerative, not exhaustive. Accordingly, a Village Munsif in the Madras Presidency has been held to be a 'Magis trate' within sec. 26 of the Evidence Act, 2 Mad. 5. all or any of the powers of a Magistrate under the Code of Criminal Procedure; (14.) 'Barrister' shall mean a barrister of England or Ire-Barrister.' land, or a member of the Faculty of Advocates in Scotland; (15.) 'Section' shall denote a section of the Act in which 'Section.' the word occurs1; (16.) 'Will' shall include a codicil and every writing making 'Will.' a voluntary posthumous distribution of property; 'swear' (17.) Oath,' 'swear' and 'affidavit' shall include affirma- 'Oath,' tion, declaration, affirming and declaring in the case of persons and affiby law allowed to affirm or declare instead of swearing; davit.' (18.) Imprisonment' shall mean imprisonment of either Imprisondescription as defined in the Indian Penal Code; ment. (19.) And in the case of any one whose personal law permits 'Son.' adoption, son' shall include an adopted son, and father''Father.' an adoptive father. 3. In all Acts made by the Governor-General of India in Council after this Act shall have come into operation : repealed (1.) For the purpose of reviving, either wholly or partially, Revival of a Statute, Act or Regulation repealed, it shall be necessary ex- enactpressly to state such purpose 2; ments. ment of (2.) For the purpose of excluding the first in a series of Commencedays or any other period of time, it shall be sufficient to use time. the word 'from;' tion of (3.) For the purpose of including the last in a series of Terminadays or any other period of time, it shall be sufficient to use time. the word 'to;" chiefs (4.) For the purpose of expressing that a law relative to the Official chief or superior of an office shall apply to the deputies or and subsubordinates lawfully executing the duties of such office in the ordinates. place of their superior, it shall be sufficient to prescribe the duty of the superior ; This should be: 'Chapter' shall denote a chapter of the Act, 'section' a section of the Act, and clause clause of the section, in which the word occurs. a 2 This should be extended so as to preclude the revival of any right, privilege, matter or thing not in force or existing when the repealing Act comes into force. Successors. Substitu tion of functionaries. Duty may be taken pro rata. Recovery of fines. Matters an enact (5.) For the purpose of indicating the relation of a law to the successors of any functionaries, or of corporations having perpetual succession, it shall be sufficient to express its relation to the functionaries or corporations; and (6.) For the purpose of indicating the application of a law to every person or number of persons for the time being executing the functions of an office, it shall be sufficient to mention the official title of the officer at present executing such funetions, or that of the officer by whom the functions are commonly executed. 4. Whenever by any Act or Regulation now in force or hereafter to be in force, any duty of customs or excise or in the nature thereof is leviable on any given quantity, by weight, measure or value, of any goods or merchandize, a like duty shall be leviable according to the same rate on any greater or less quantity. 5. The provisions of sections 63 to 70, both inclusive, of the Indian Penal Code, and of sections 386, 387, and 389 of the Code of Criminal Procedure, shall apply to all fines imposed under the authority of any Act hereafter to be passed, unless such Act shall contain an express provision to the contrary. 6. The repeal of any Statute, Act or Regulation, shall not done under affect anything done or any offence committed 1, or any fine or penalty incurred, or any proceedings commenced before the repealing Act shall have come into operation 3. ment before its repeal to be unaffected. 1 See 2 Cal. 225, where, however, 2 A suit is a judicial proceeding, 3 1 All. 668; 2 All. 786, 851; 4 Cal. acted on after it is repealed; but that, with regard to all matters that have taken place under it before its repeal, they remain valid, R. v. Denton, 21 L. J. M. C. 208, cited 8 Bom. 345: This section is not to be held to govern all the remotest ministerial consequences of a suit arising on applications made years afterwards according to the procedure in force at its institution, but only to bring under the same law such series of proceed ings as group themselves naturally together, as, e. g. those on a particular application for execution, Bom. 463. INTRODUCTION TO THE CONTRACT ACT. THE Indian Contract Act, 1872, endeavours to codify-that is to say, arrange clearly and systematically-the chief rules relating to the formation, ratification, and discharge of all agreements enforceable by law, made between two or more persons, by which rights are acquired by one or more of them to acts or forbearances on the part of the other or others'. 'It also deals specially with the following classes of those agreements, viz.: Sale of Goods; Indemnity and Guarantee; Bailment, including Pledge; Warranty; Agency and private Partnership (public partnerships are dealt with by the Indian Companies Act, 1882). It deals, lastly, with the quasi-contracts implied when A pays something which B ought to pay, or B receives something which A ought to receive. The obligation arising from Breach of Contract is partially dealt with by the section of the Contract Act relating to compensation. The law relating to the Specific Performance and Rescission of contracts was then codified by the Specific Relief Act, 1877, chapters II and IV. Then came the codification of the law of Negotiable Instruments (Act XXVI of 1881) which deals with the most important branch of the law relating to the assignment of contractual rights. Lastly, the rules relating to the assignment by operation of law of obligations on the transfer of land; to Sale, Mortgage and Lease of Immovables; to Exchange and Gift of every kind of property, and to the assignment of contractual rights not comprised in Act XXVI of 1881, were codified by the Transfer of Property Act, 1882, chapters III, IV, V and VI. It thus appears that, with the exceptions of the rules relating to the Interpretation of Contracts, of those relating to the special contracts of Carriage, Master and Servant, Bottomry, Respondentia, and Insurance, the Indian Legislature has codified, more or less completely, the law relating to every important kind of agreement; and draft codes relating to most of the excepted subjects are now in the Legislative Department of the Government of India. 1 See Anson, Law of Contract, 4th ed., p. 9. In this Introduction we shall first consider the Indian law on the subject of Contract in general-its nature, operation, and discharge and then notice briefly the Indian law relating to the special forms of contract. Analysis of According to the latest analysis of a contract1 its constituent a contract. elements are: 1. Several parties capable of contracting; 2. A bilateral act by which they express their agreement; 3. A matter agreed upon which is (a) possible, (b) legal, and (c) of a nature to produce a result legally binding and affecting the relations of the parties to each other; and 4. Very generally, either a solemn form or some fact which affords a motive for the agreement. It will be both interesting and instructive to see how far the provisions of the Indian Contract Act conform to this analysis. I. Various definitions of contract' have been framed; but all require the concurrence, or what a reasonable man would deem the concurrence, of two or more wills in producing a modification of the rights of the parties concerned. There must therefore be at least two distinct parties, a promisor (debitor) and a promisee (creditor). This distinction must not be merely formal, as where the same company had two departments, one for insurance and one for annuities, and the latter department effected an insurance with the former 3. And the promisee must not be an 'incerta persona,' e. g. 'the secretary for the time being.' As to the capacity of the parties, the Contract Act declares that every person is competent to contract who is (1) of the age of majority according to which he is subject; (2) of sound mind; (3) not disqualified from contracting by any law to which he is subject. There are no exceptions in the case of married women, alien enemies, convicts, or barristers agreeing to render professional service. Nor does the Act say anything as to the limits of the contractual capacity of corporations". 2. The bilateral act expressive of agreement. This consists of a proposal on one side and an acceptance on the other. One party expresses his willingness to do or abstain from doing something, and the other party expresses his assent to such act or abstention. 1 Holland, Jurisprudence, p. 217, where the capacity of the parties is left unnoticed. See ibid. pp. 285-288 as to minors, married women, lunatics, alien enemies. 2 In 'legal' Prof. Holland probably 6 means to include conformable to morality.' Grey v. Ellison, 1 Giff. 438. *See Ashbury Ry. Carriage Com pany v. Riche, L. R. 9 Exch. 224; S. C. L. R. 7 H. L. 653. |
