Offer [Part-1] | Law Exams
What is an Offer?
In order to create a valid contract, there must be an offer. Where one party makes an offer and the another party must accept it, and the consideration must be exchanged. Therefore, the proposal or offer must be accepted to enter into an agreement.
One who makes an offer is called as "offerer/promisor" and who accepts or receives it is called as "offeree/promisee."
According to Section 2(a) of the Indian Contract Act, 1872
(a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal.
According to Section 2(c) of the Indian Contract Act, 1872
(c) The person making the proposal is called the “promisor”, and the person accepting the proposal is called the “promisee.”
ESSENTIAL OF VALID OFFER:
- There must be two parties
- Must be communicated
- Intention to create Legal Relations
- Definite and certain terms
- Must be made with the purpose of obtaining the assent of other party
- Expressed or Implied
- It is not an invitation of offer
1. There must be two parties:
There have to be atleast two parties where one person makes an offer and other person accepts.
2. Must be communicated:
Communication of the proposal is mandatory. The offer must be communicated to the offeree or brought to their knowledge. Until the offeree becomes aware of the offer, it cannot be accepted. The communication can be made through various means, such as in writing, orally, or even through conduct. In the case of Lalman Shukla v. Gauri Dutt, it was decided that in order for a proposal to be considered a legal contract, it must be communicated to the parties involved. If they agree to the proposal's provisions, the parties can then reward each other.
3. Intention to create Legal Relations:
The offeror must intend to create a legally binding relationship by making the offer. It means that the offer must be serious and not just a mere expression of intention or an invitation to negotiate.
4. Definite and certain terms:
The offer must have clear, definite, and specific terms that leave no room for ambiguity. The terms should be precise enough to enable the offeree to understand what is being offered and what is expected in return.
5. Must be made with the purpose of obtaining the assent of other party:
When the offeree accepts the terms and conditions outlined in the offer can it turn into a legally binding contract. The offer is made by the offeror, and the contract is formed when the offeree agrees to it or accepts it.
6. Expressed or Implied:
An offer can be expressed or implied. An expressed offer is one that is explicitly and clearly stated, either orally or in writing. It may be in the form of a written contract, a letter, an email, or even a verbal statement. An implied offer arises when the offeror's actions, conduct, or circumstances reasonably indicate an intention to enter into a contract. In these cases, the offer is not expressly stated but can be inferred from the conduct or behavior of the offeror.
7. It is not an invitation of offer:
An invitation to treat is a preliminary stage in the formation of a contract where one party invites others to make an offer. It is not a binding offer but an invitation for others to enter into negotiations or make offers. On the other hand, an offer is a specific proposal made with the intention to create a legally binding contract upon acceptance.
CLASSIFICATION OF OFFER:
There are various kinds of offer or proposal under the Indian Contract Act, 1872. They are,
- Express offer
- Implied offer
- Specific offer
- General offer
- Cross offer
- Counter offer
- Standing offer
EXPRESS OFFER:
An express offer is made explicitly, either orally or in writing. It contains clear and definite terms that are capable of creating a binding contract once accepted. It can be made face-to-face or via telephone. The written offer can be made in the form of text messages, advertisements, letters, or emails.
IMPLIED OFFER:
An implied offer is not stated explicitly but is inferred from the conduct, actions, or circumstances of the parties involved. It implies an intention to enter into a contract. It may be implied from:
- Conduct of the parties
- Circumstances of the case
SPECIFIC OFFER:
A specific offer is made to a specific person or a group of persons. It is not intended to be open to the general public. Specific offer can be accepted only by that person to whom it is made. The offeror intends to create legal relations with the specific person(s) to whom the offer is made.
For Example, if A wants to buy a house from B, considering this is a specific offer only B can agree to this offer and not anyone else.
GENERAL OFFER:
A general offer is made to the public at large or a specific section of the public. It is intended to be open for acceptance by anyone who fulfills the conditions specified in the offer.
A classic example of a general offer is the "Carlil vs. Carbolic Smoke Ball Company.".
Case Facts:
The Carbolic Smoke Ball Company manufactured and sold a product called the "Carbolic Smoke Ball," which they claimed could prevent influenza and similar diseases. They published advertisements in newspapers, offering a reward of £100 to anyone who contracted influenza after using their smoke ball as instructed for a specified period. The advertisement also mentioned that they had deposited £1,000 in a bank to show their sincerity in fulfilling the offer.
Mrs. Carlill, a customer, purchased and used the smoke ball as instructed but still contracted influenza. She sued the company to claim the £100 reward mentioned in the advertisement.
Judgement:
The court ruled in favor of Mrs. Carlill based on the principle of general offer. The rule of a general offer states that an offer made to the public or a specific group of people can be accepted by anyone who fulfills the conditions specified in the offer.
CROSS OFFER:
A cross offer occurs when two parties independently make identical offers to each other without knowledge of the other's offer. Since the parties are making offers and not accepting them, no contract is formed until one party communicates acceptance to the other.
The well-known case of "Tinn V. Hoffman" helps explain the idea of a cross offer in detail.
Case Facts:
In the case of Tinn v. Hoffman, the defendant proposed to the petitioner to sell 800 tonnes of iron for 69 cents a tonne. The petitioner simultaneously made an offer to the defendant to buy the same amount of iron from him for the same price.
Judgement:
The court determined that because these cross offers were made side by side and neither party was aware of them, the parties were not obligated to uphold the contract. Cross offers cannot be seen as any sort of acceptance between parties. Therefore, neither side would experience a binding consequence.
COUNTER OFFER:
A counter offer is made in response to an original offer and introduces new terms or conditions. It amounts to a rejection of the original offer and acts as a new offer. The original offeror can accept, reject, or make a counter offer in response to the counter offer.
For Example, A offers B a house for 15 Lakhs, B agrees to buy the house for 10 Lakhs, this amounts to a counter offer and would mean the rejection of the original offer.
STANDING OFFER/ OPEN OFFER:
A standing offer is an offer that remains open for a specified period, allowing the offeree to accept it at any time during that period. The offeror is obligated to fulfill the terms of the offer if the offeree accepts within the specified time.
Once the other party accepts the offer, a standing or open contract is deemed to have been concluded. A tender, which is nothing more than an offer, serves as the best illustration of a standing or open offer.
Difference between Contract and Agreement | Law Exams
DIFFERENCE BETWEEN CONTRACT AND AGREEMENT
| Aspect | Contract | Agreement |
|---|---|---|
| Definition | A legally binding agreement enforceable by law. | A mutual understanding or arrangement between two or more parties. |
| Essential Elements | Offer, acceptance, consideration, intention to create legal relations, and capacity of the parties. | Offer and acceptance. |
| Consideration | There must be consideration while forming the contract. | Agreements can be formed without consideration. |
| Defined under | Section 2 (h) of the Indian Contract Act, 1872. | Section 2 (e) of the Indian Contract Act, 1872. |
| Enforceability |
Legally enforceable by the parties involved. | May or may not be legally enforceable. |
| Legal Obligations |
Creates legal obligations between the parties. | May or may not create legal obligations, depending on the intention. |
| Nature of Parties |
Parties can be individuals, companies, or entities. | Parties can be individuals, companies or entities. |
| Legal Consequences | Breach of contract may lead to legal remedies or damages. | Breach of agreement may not have the same legal consequences as a contract |
| Written/Formal Requirement | Some contracts must be in writing and comply with specific formalities. | Agreements can be oral or written, and formalities may not be necessary. |
Registration | Some contracts require registration, e.g., sale of immovable property | Agreements generally do not requure registration. |
| Mutual Consent |
Requires mutual consent of the parties involved. | Requires mutual consent of the parties involved. |
| Intention to be Legal | Must have an intention to create legal relations. | May or may not have an intention to create legal relations. |
Essentials of Formation of Contract | Law Exams
Initially, there are two components which form the basis of a contract. They are,
- An Agreement
- Its enforceability by law
Agreement:
An agreement consists of proposal or an offer by one party and its acceptance by another party. It also implies that the parties have a common intention about the subject-matter of the agreement. Two parties must be thinking the same thing in the same sense. Thus agreement is the outcome of the two consenting minds, i.e.,"consensus ad idem".
According to Section 2(e) of the Indian Contract Act, 1872
Agreement is defined as "every promise or every set of promises forming the consideration for each other".
According to Section 2(b) of the Indian Contract Act, 1872
When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise.
Enforceability of Agreement by law:
Agreements based on its enforceability by law are of two types-
- Unenforceable agreement
- Enforceable agreement
All agreements to become a contract must be enforceable by law. Enforceability by law in contracts refers to the ability of a contract to be legally binding and upheld in a court of law. When parties enter into a contract, they typically have certain rights and obligations outlined in the agreement. Enforceability ensures that if one party fails to fulfill their obligations or breaches the contract, the other party can seek legal remedies to enforce the terms of the agreement.
“All contracts are agreements but all agreements are not contracts.”
ESSENTIAL ELEMENTS OF A VALID CONTRACT:
According to Section 10 of the Indian Contract Act, 1872
All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
In order to become a valid contract, an agreement must consist of the following essential elements,
- Offer and Acceptance
- Lawful Consideration
- Capacity of the partners
- Free Consent
- Lawful object
- Agreements Not Expressly Declared Void
- Possibility Of Performance
What is a contract? | Law Exams
WHAT IS A CONTRACT?
A contract is an agreement between parties that creates mutual obligations that are enforceable by law. It is a binding agreement between two or more parties.It can also be described as "a set of enforceable promises, either written or oral."
For example,
1) When we buy a product at a store, we are entering into an agreement to purchase whatever it is we are purchasing.
2) When we get a new job, we sign an employment agreement to start work.
According to Section 2(h) of the Indian Contract Act, 1872
Contract is defined as an agreement enforceable by law.
From this definition, we find that a contract essentially consists of two elements i.e. an agreement and legal obligation i.e. a duty enforceable by law.
According to Pollock, Every agreement and promise enforceable by law is a contract.
According to Salmond, A contract is an agreement creating and defining obligation between two or more persons by which rights are acquired by one or more to act or forbearance on the part of others.
According to Cambridge Dictionary, Contract is a legal document that states and explains a formal agreement between two different people or groups, or the agreement itself.
THE INDIAN CONTRACT ACT, 1872
The Indian Contract Act of 1872, which dates back to that year, is one of the nation's first laws governing business. On September 1st of same year, the Indian Contract Act 1872 was passed. Except for Jammu & Kashmir, practically all of India's states were covered by the statute.
The primary legislation governing all contracts made in India is Indian contract law. The law is broken down into 266 sections. In the upcoming articles, we shall learn more about them.
WHAT IS THE PURPOSE OF A CONTRACT?
Contracts are like promises that people make to each other and legally bind themselves to follow. They help ensure fairness, protect rights, and provide a way to resolve disputes if promises are broken.
Contracts are made between two or more people, like a promise or agreement. They can be made between individuals, companies, or even governments. It's a way for people to agree on what they will do and what they expect from each other.
Read more: Essentials of Formation of Contract
Critically Endangered Species of India- The Gliding Frog | UPSC
CRITICALLY ENDANGERED SPECIES
(C) REPTILES AND AMPHIBIANS:
4.The Gliding Frog (Rhacophorus pseudomalabaricus)
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| The Gliding Frog |
The Gliding Frog (Rhacophorus pseudomalabaricus) is endemic to the Western Ghats. This species is confined to the rain forests of the Western Ghats and occurs at elevations of greater than 1000m. This species has been recently described in the year 2000.
CONSERVATION STATUS: Critically Endangered.
HABITAT: Rainforests above 1000m altitude.
DISTRIBUTION: Indira Gandhi National Park and surrounding areas of Anamalai hills, Tamil Nadu.
THREATS: Conversion of forested areas for timber and non-timber plantations, and timber extraction activities.
ALSO READ: Four-toed River Terrapin
Critically Endangered Species of India- Four-toed River Terrapin | UPSC
CRITICALLY ENDANGERED SPECIES
(C) REPTILES AND AMPHIBIANS
3. Four-toed River Terrapin or River Terrapin (Batagur baska)
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| Four-toed River Terrapin |
Four-toed river terrapin or Northern River terrapin (Batagur baska) is a critically endangered turtle. The omnivorous diet of the river terrapin and other terrapin species, makes them an essential part of the effi cient clean-up systems of aquatic habitats.
CONSERVATION STATUS: Critically Endangered.
HABITAT: Freshwater rivers and lakes.
DISTRIBUTION: Bangladesh, Cambodia, India, Indonesia, Malaysia.
THREATS: Use of flesh for medicinal purposes, demand for eggs, which are considered a delicacy.
ALSO READ: Leatherback turtles.
Critically Endangered Species of India- Leatherback turtles | UPSC
CRITICALLY ENDANGERED SPECIES
(C) REPTILES AND AMPHIBIANS:
2. Leatherback Turtles (Dermochelys coriacea)
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| Leatherback Turtles |
Leatherback turtles (Dermochelys coriacea) are the largest of living sea turtles weighing as much as 900 kg. Adult leatherback turtles are excellent swimmers – they swim on an average of 45-65 km a day, travel upto 15,000 km per year and can dive as deep as 1200 m.
Jelly fish are their primary prey. The population spikes of leatherbacks coincide with abundance of
jelly fish, making them important top-predators in marine environments.
CONSERVATION STATUS: Critically Endangered
HABITAT: Tropical and subtropical oceans.
DISTRIBUTION: Found in tropical and temperate waters of the Atlantic, Pacific, and Indian Oceans.
THREATS: High sea fi shing operations, harvesting of eggs, destruction of nests by wild species
and domesticated species such as cats, dogs and pigs. Artifi cial lighting disorients hatchlings and
adult and causes them to migrate inland rather than back to the sea. Threats to habitat include
construction, mining and plantation of exotics.
ALSO READ: The Gharial
Critically Endangered Species of India- Gharial | UPSC
CRITICALLY ENDANGERED SPECIES
(C) REPTILES AND MAMMALS:
1. The Gharial
The Gharial (Gavialis gangeticus) is the most uniquely evolved crocodilian in the world, a specialized river-dwelling fish-eater.
The dire condition of the gharial reflects the tragedy of our rivers where we stand to not only lose other endangered taxa such as the Ganges river dolphin (Platanista gangetica) but also the use of their waters for human consumption and other needs.
CONSERVATION STATUS: Critically Endangered
HABITAT: Clean rivers with sand banks.
DISTRIBUTION: Only viable population in the National Chambal Sanctuary, spread across three States of Uttar Pradesh, Rajasthan and Madhya Pradesh in India. Small non-breeding populations exist in Son, Gandak, Hoogly and Ghagra rivers. Now extinct in Myanmar, Pakistan, Bhutan and Bangladesh.
THREATS: The combined effects of dams, barrages, artificial embankments, change in river course,
pollution, sand-mining, riparian agriculture and ingress of domestic and feral livestock caused
irreversible loss of riverine habitat and consequently of the gharial.
ALSO READ: The Pygmy hog
Critically Endangered Species of India- The Pygmy hog | UPSC
CRITICALLY ENDANGERED SPECIES
(B) MAMMALS:
1. The Pygmy hog
 |
| The Pygmy hog |
The Pygmy hog (Porcula salvania) is the world’s smallest wild pig, with adults weighing only 8 kg. This species constructs a nest throughout the year. It is one of the most useful indicators of management status of grassland habitats.
The grasslands where the pygmy hog resides are crucial for the survival of other endangered species such as Indian rhinoceros (Rhinoceros unicornis), swamp deer (Cervus duvauceli), wild buffalo
(Bubalus arnee), hispid hare (Caprolagus hispidus), Bengal florican (Eupodotis bengalensis) and swamp francolin (Francolinus gularis). In 1996, a captive-breeding programme of the species was initiated in Assam, and some hogs have been reintroduced in Sonai Rupai area also in 2009.
CONSERVATION STATUS: Endangered
HABITAT: Relatively undisturbed tall ‘terai’ grasslands.
DISTRIBUTION: Formerly, the species was more widely distributed along the southern Himalayan
foothills but now is restricted to only a single remnant population in Manas Wildlife Sanctuary
and its buffer reserves.
THREATS: The main threats are loss and degradation of grasslands, dry-season burning, livestock
grazing and afforestation of grasslands. Hunting is also a threat to the remnant populations.
Also Read: Bengal Florican
Critically Endangered Species of India- Bengal Florican (UPSC)
CRITICALLY ENDANGERED SPECIES
(A) BIRDS:
5. BENGAL FLORICAN (Houbaropsis bengalensis)
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| Bengal Florican |
Bengal Florican is a rare bustard species that is very well known for its mating dance. Among the tall grasslands, secretive males advertise their territories by springing from the ground and fl itting in the air to and fro.
CONSERVATION STATUS: Critically Endangered
HABITAT: Grasslands sometimes intersperesd with scrublands.
DISTRIBUTION: Native to only 3 countries in the world - Cambodia, India and Nepal. In India, it occurs in 3 States namely Uttar Pradesh, Assam and Arunachal Pradesh.
THREATS: Ongoing conversion of the bird’s grassland habitat for various purposes including agriculture is mainly responsible for its population decline.
ALSO READ: Vultures
Critically Endangered Species of India- Vultures (UPSC)
CRITICALLY ENDANGERED SPECIES
(A) BIRDS:
4. VULTURES
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| Vultures |
Out of nine species of vultures, population of three species ( White-backed Vulture Gyps bengalensis, Slender-billed Vulture Gyps tenuirostris and Long-billed Vulture Gyps indicus) have declined by 99%. Vultures keep the environment clean, by scavenging on animal carcasses.
The decline in vulture populations has associated disease risks including increased risk of spread of rabies and anthrax, besides adversely impacting the observance of last rites by the Parsis in the tower of silence.
- Varying vultures have different conservation statuses. The three species (White-backed Vulture Gyps bengalensis, Slender-billed Vulture Gyps tenuirostris and Long-billed Vulture Gyps indicus) are now classified as critically endangered.
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| Slender-billed Vulture |
Habitat: Forests, habitation, villages etc.
Distribution: Across India.
Threats: A major threat to vultures is the use of the painkiller diclofenac for veterinary purposes.
On consumption of carcasses, diclofenac gets into the system of vultures which they are unable
to metabolize. Accumulation of diclofenac results in gout-like symptoms such as neck-drooping
ultimately leading to death.
Also Read: White-bellied Heron
Critically Endangered Species of India- White-bellied Heron (UPSC)
CRITICALLY ENDANGERED SPECIES
(A) BIRDS:
3. WHITE-BELLIED HERON (Ardea insignis)
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| White-bellied Heron |
The white-bellied heron is a large bird with a height of 127 cm. Its wingspan is estimated to be over 200 cm. The back and the long neck are dark grey in color. The belly plumage is whitish. The bill is large and black in color.
CONSERVATION STATUS: Critically Endangered
HABITAT: Rivers with sand or gravel bars or inland lakes.
DISTRIBUTION: Bhutan and north-east India to the hills of Bangladesh and north Myanmar.
THREATS: Loss and degradation of lowland forest and wetlands through direct exploitation and disturbance.
Also Read: The Forest Owlet
Critically Endangered Species of India- The Forest Owlet (UPSC)
CRITICALLY ENDANGERED SPECIES
(A) BIRDS:
2. The Forest Owlet (Heteroglaux blewitti)
They are an exclusive species to India and can only be found there in tiny areas of forest. In the 1880s, the bird was first discovered. After then, nobody brought up these birds at all for almost a century. The cavity is used by the forest owlets to hide their prey. It is known as cashing.
When not sighted for decades, posters were printed and Salim Ali, the premier ornithologist of India made a public appeal to look for the bird. After 113 long years, in 1997, the owlet was rediscovered and reappeared on the list of Indian birds.
CONSERVATION STATUS: Endangered
Habitat: Dry decidous forest
Distribution: South Madhya Pradesh, in north-west Maharashtra and north-central Maharashtra.
Threats: Logging operations, burning and cutting of trees damage roosting and nesting trees of the Forest Owlet.
Also Read: The Jerdon's Courser
PART XXII- Short title, Commencement, Authoritative Text in Hindi and Repeals
PART XXII
SHORT TITLE, COMMENCEMENT, AND AUTHORITATIVE TEXT IN HINDI AND REPEALS
393. Short title.—This Constitution may be called the Constitution of India.
394. Commencement.—This article and articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and 393 shall come into force at once, and the remaining provisions of this Constitution shall come into force on the twenty-sixth day of January, 1950, which day is referred to in this Constitution as the commencement of this Constitution.
394A. Authoritative text in the Hindi language.—
(1) The President shall cause to be published under his authority,—
(a) the translation of this Constitution in the Hindi language, signed by the members of the Constituent Assembly, with such modifications as may be necessary to bring it in conformity with the language, style and terminology adopted in the authoritative texts of Central Acts in the Hindi language, and incorporating therein all the amendments of this Constitution made before such publication; and
(b) the translation in the Hindi language of every amendment of this Constitution made in the English language.
(2) The translation of this Constitution and of every amendment thereof published under clause (1) shall be construed to have the same meaning as the original thereof and if any difficulty arises in so construing any part of such translation, the President shall cause the same to be revised suitably.
(3) The translation of this Constitution and of every amendment thereof published under this article shall be deemed to be, for all purposes, the authoritative text thereof in the Hindi language
395. Repeals.—The Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed.
Indian Constitution- Temporary, Transitional and Special Provisions [Part 7]
PART XXI
TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS
377. Provisions as to Comptroller and Auditor-General of India.—The Auditor-General of India holding office immediately before the commencement of this Constitution shall, unless he has elected otherwise, become on such commencement the Comptroller and Auditor-General of India and shall thereupon be entitled to such salaries and to such rights in respect of leave of absence and pension as are provided for under clause (3) of article 148 in respect of the Comptroller and Auditor-General of India and be entitled to continue to hold office until the expiration of his term of office as determined under the provisions which were applicable to him immediately before such commencement.
378. Provisions as to Public Service Commissions.—
(1) The members of the Public Service Commission for the Dominion of India holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the members of the Public Service Commission for the Union and shall, notwithstanding anything in clauses (1) and (2) of article 316 but subject to the proviso to clause (2) of that article, continue to hold office until the expiration of their term of office as determined under the rules which were applicable immediately before such commencement to such members.
(2) The Members of a Public Service Commission of a Province or of a Public Service Commission serving the needs of a group of Provinces holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the members of the Public Service Commission for the corresponding State or the members of the Joint State Public Service Commission serving the needs of the corresponding States, as the case may be, and shall, notwithstanding anything in clauses (1) and (2) of article 316 but subject to the proviso to clause (2) of that article, continue to hold office until the expiration of their term of office as determined under the rules which were applicable immediately before such commencement to such members.
378A. Special provision as to duration of Andhra Pradesh Legislative Assembly.—Notwithstanding anything contained in article 172, the Legislative Assembly of the State of Andhra Pradesh as constituted under the provisions of sections 28 and 29 of the States Reorganisation Act, 1956, shall,
unless sooner dissolved, continue for a period of five years from the date referred to in the said section 29 and no longer and the expiration of the said period shall operate as a dissolution of that Legislative Assembly.
392. Power of the President to remove difficulties.—
(1) The President may, for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the provisions of this Constitution, by order direct that this Constitution shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient:
Provided that no such order shall be made after the first meeting of Parliament duly constituted under Chapter II of Part V.
(2) Every order made under clause (1) shall be laid before Parliament.
(3) The powers conferred on the President by this article, by article 324, by clause (3) of article 367 and by article 391 shall, before the commencement of this Constitution, be exercisable by the Governor-General of the Dominion of India.