Article 38.1(b) of the ICJ Statute refers to "international custom" as a source of international law, specifically emphasizing the two requirements of state practice plus acceptance of the practice as obligatory or opinio juris sive necessitatis (usually abbreviated as opinio juris).

Derived from the consistent practice of (originally) Western states accompanied by opinio juris (the conviction of States that the consistent practice is required by a legal obligation), customary international law is differentiated from acts of comity by the presence of opinio juris (although in some instances, acts of comity have developed into customary international law, i.e. diplomatic immunity). Treaties have gradually displaced much customary international law. This development is similar to the replacement of customary or common law by codified law in municipal legal settings, but customary international law continues to play a significant role in international law.

[edit] State practice

When examining state practice to determine relevant rules of international law, it is necessary to take into account every activity of the organs and officials of states that relate to that purpose. There has been continuing debate over where a distinction should be drawn as to the weight that should be attributed to what states do, rather than what they say represents the law. In its most extreme form, this would involve rejecting what states say as practice and relegating it to the status of evidence of opinio juris.^[2] A more moderate version would evaluate what a state says by reference to the occasion on which the statement was made.^[3] It is only relatively powerful countries with extensive international contacts and interests that have regular opportunities of contributing by deed to the practice of international law. The principal means of contribution to state practice for the majority of states will be at meetings of international organisations, particularly the UN General Assembly, by voting and otherwise expressing their view on matters under consideration. Moreover, there are circumstances in which what states say may be the only evidence of their view as to what conduct is required in a particular situation.^[4]

The notion of practice establishing a customary rule implies that the practice is followed regularly, or that such state practice must be "common, consistent and concordant".^[5] Given the size of the international community, the practice does not have to encompass all states or be completely uniform. There has to be a sufficient degree of participation, especially on the part of states whose interests are likely be most affected,^[6] and an absence of substantial dissent.^[7] There have been a number of occasions on which the ICJ has rejected claims that a customary rule existed because of a lack of consistency in the practice brought to its attention.^[8]

Within the context of a specific dispute, however, it is not necessary to establish the generality of practice. A rule may apply if a state has accepted the rule as applicable to it individually, or because the two states belong to a group of states between which the rule applies.^[9]

A dissenting state is entitled to deny the opposability of a rule in question if it can demonstrate its persistent objection to that rule,^[10] either as a member of a regional group^[11] or by virtue of its membership of the international community.^[12] It is not easy for a single state to maintain its dissent. Also, rules of the jus cogens^[13] have a universal character and apply to all states, irrespective of their wishes.

Demand for rules that are responsive to increasingly rapid changes has led to the suggestion that there can be, in appropriate circumstances, such a concept as "instant custom". Even within traditional doctrine, the ICJ has recognised that passage of a short period of time is not necessarily a bar to the formation of a new rule.^[14] Because of this, the question is sometimes raised as to whether the word "custom" is suitable to a process that could occur with great rapidity.

[edit] Opinio juris

A wealth of state practice does not usually carry with it a presumption that opinio juris exists. “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.”^[15]

In cases where practice (of which evidence is given) comprises abstentions from acting, consistency of conduct might not establish the existence of a rule of customary international law. The fact that no nuclear weapons have been used since 1945, for example, does not render their use illegal on the basis of a customary obligation because the necessary opinio juris was lacking.^[16]

Although the ICJ has frequently referred to opinio juris as being an equal footing with state practice,^[17] the role of the psychological element in the creation of customary law is uncertain.

[edit] Jus cogens

A peremptory norm or jus cogens (Latin for "compelling law" or "strong law") is a principle of international law considered so fundamental that it overrides all other sources of international law, including even the Charter of the United Nations. The principle of jus cogens is enshrined in Article 53 of the Vienna Convention on the Law of Treaties:

For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.^[1]

Rules of jus cogens generally require or forbid the state to do particular acts or respect certain rights. However, some define criminal offences which the state must enforce against individuals. Generally included on lists of such norms are prohibitions of such crimes and internationally wrongful acts as waging aggressive war, war crimes, crimes against humanity, piracy, genocide, apartheid, slavery and torture.

The evidence supporting the emergence of a rule of jus cogens will be essentially similar to that required to establish the creation of a new rule of customary international law. Indeed, jus cogens could be thought of as a special principle of custom with a superadded opinio juris. The European Court of Human Rights has stressed the international public policy aspect of the jus cogens.

[edit] Treaties as law

Main article: Treaties

Treaties can play the role of contracts between two or more parties, such as an extradition treaty or a defence pact. Treaties can also be legislation to regulate a particular aspect of international relations, or form the constitutions of international organisations. Whether or not all treaties can be regarded as sources of law, they are sources of obligation for the parties to them. Article 38(1)(a), which uses the term "international conventions", concentrates upon treaties as a source of contractual obligation but also acknowledges the possibility of a state expressly accepting the obligations of a treaty to which it is not formally a party.

For a treaty-based rule to be a source of law, rather than simply a source of obligation, it must either be capable of affecting non-parties or have consequences for parties more extensive than those specifically imposed by the treaty itself.

[edit] Treaties as custom

Some treaties are the result of codifying existing customary law, such as laws governing the global commons, and jus ad bellum. While the purpose is to establish a code of general application, its effectiveness depends upon the number of states that ratify or accede to the particular convention. Relatively few such instruments have a sufficient number of parties to be regarded as international law in their own right. The most obvious examples are the 1949 Geneva Conventions for the Protection of War Victims.

Most multi-lateral treaties fall short of achieving such a near universal degree of formal acceptance, and are dependent upon their provisions being regarded as representing customary international law and, by this indirect route, as binding upon non-parties. This outcome is possible in a number of ways:

• When the treaty rule reproduces an existing rule of customary law, the rule will be clarified in terms of the treaty provision. A notable example is the Vienna Convention on the Law of Treaties 1969, which was considered by the ICJ to be law even before it had been brought into force.^[18]
• When a customary rule is in the process of development, its incorporation in a multilateral treaty may have the effect of consolidating or crystallising the law in the form of that rule. It is not always easy to identify when this occurs. Where the practice is less developed, the treaty provision may not be enough to crystallise the rule as part of customary international law.^[19]
• Even if the rule is new, the drafting of the treaty provision may be the impetus for its adoption in the practice of states, and it is the subsequent acceptance of the rule by states that renders it effective as part of customary law.^[20] If a broad definition is adopted of state practice, the making of a treaty would fall within the definition. Alternatively, it is possible to regard the treaty as the final act of state practice required to establish the rule in question, or as the necessary articulation of the rule to give it the opinio juris of customary international law.
• Convention-based "instant custom" has been identified by the ICJ on several occasions as representing customary law without explanation of whether the provision in question was supported by state practice. This has happened with respect to a number of provisions of the Vienna Convention on the Law of Treaties 1969. If "instant custom" is valid as law, it could deny to third parties the normal consequences of non-accession to the treaty.

[edit] General principles of law

The scope of general principles of law, to which Article 38(1) of the Statute of the ICJ refers, is unclear and controversial but may include such legal principles that are common to a large number of systems of municipal law. Given the limits of treaties or custom as sources of international law, Article 38(1) may be looked upon as a directive to the Court to fill any gap in the law and prevent a non liquet by reference to the general principles.

In earlier stages of the development of international law, rules were frequently drawn from municipal law. In the 19th century, legal positivists rejected the idea that international law could come from any source that did not involve state will or consent, but were prepared to allow for the application of general principles of law, provided that they had in some way been accepted by states as part of the legal order. Thus Article 38(1)(c), for example, speaks of general principles "recognised" by states. An area that demonstrates the adoption of municipal approaches is the law applied to the relationship between international officials and their employing organisations,^[21] although today the principles are regarded as established international law.

The significance of general principles has undoubtedly been lessened by the increased intensity of treaty and institutional relations between states. Nevertheless, the concepts of estoppel and equity have been employed in the adjudication of international disputes. For example, a state that has, by its conduct, encouraged another state to believe in the existence of a certain legal or factual situation, and to rely upon that belief, may be estopped from asserting a contrary situation in its dealings.^[22] The principle of good faith was said by the ICJ to be "[o]ne of the basic principles governing the creation and performance of legal obligations".^[23] Similarly, there have been frequent references to equity.^[24] It is generally agreed that equity cannot be employed to subvert legal rules (that is, operate contra legem).^[25] This "equity as law" perception is reinforced by references to equitable principles in the text of the United Nations Convention on the Law of the Sea 1982, though this may be little more than an admission as to the existence, and legitimation, of the discretion of the adjudicator.

However, the principles of estoppel and equity in the international context do not retain all the connotations they do under common law. The reference to the principles as "general" signify that, if rules were to be adapted from municipal law, they should be at a sufficient level of generality to encompass similar rules existing in many municipal systems. Principles of municipal law should be regarded as sources of inspiration rather than as sources of rules of direct application.^[26]

[edit] Judicial decisions and juristic writings

According to Article 38(1)(d) of its Statute, the ICJ is also to apply "judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law". It is difficult to tell what influence these materials have on the development of the law. Pleadings in cases before the ICJ are often replete with references to case law and to legal literature.

[edit] Judicial decisions

The decisions of international and municipal courts and the publications of academics can be referred to, not as a source of law as such, but as a means of recognizing the law established in other sources. In practice the International Court of Justice does not refer to domestic decisions although it does invoke its previous case-law.

There is no rule of stare decisis in international law. The decision of the Court has no binding force except between the parties and in respect of that particular case.^[27] Nevertheless, often the Court would refer to its past decisions and advisory opinions to support its explanation of a present case.

Often the International Court of Justice will consider General Assembly resolutions as indicative of customary international law.

[edit] Juristic writings

Article 38(1)(d) of the International Court of Justice Statute states that the 'teachings of the most highly qualified publicists of the various nations' are also among the 'subsidiary means for the determination of the rules of law'. The scholarly works of prominent jurists are not sources of international law but are essential in developing the rules that are sourced in treaties, custom and the general principles of law. This is accepted practice in the interpretation of international law and was utilised by the United States Supreme Court in The Paquete Habana case (175 US (1900) 677 at 700-1).

[edit] See also

• International law

[edit] Notes and references

1. ^ Statute of the International Court of Justice.
2. ^ D'Amato, A., The Concept of Custom in International Law (Cornell University Press: Ithaca, New York, 1971) at 88.
3. ^ Thirlway, H., International Customary Law and its Codification (A. W. Sijthoff: Leiden, 1972) at 58.
4. ^ See Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Reports 14.
5. ^ Fisheries Jurisdiction Case (United Kingdom v Iceland) (Merits) [1974] ICJ Reports 3 at 50.
6. ^ North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) [1969] ICJ Reports 4 at 42.
7. ^ Nicaragua case (Merits), note 4 at 98.
8. ^ Asylum Case (Colombia v Peru) [1950] ICJ Rep 266 at 277; Advisory Opinion on the Legality of the Threat or Use by a State of Nuclear Weapons in Armed Conflict [1996] ICJ Reports 226.
9. ^ Case Concerning Right of Passage over Indian Territory (Portugal v India) (Merits) [1960] ICJ Reports 6 at 39; Asylum case, note 8 at 276.
10. ^ North Sea Continental Shelf cases, note 6 at 229, 232 per Judge Lachs.
11. ^ Asylum case, note 8 at 277-8.
12. ^ Fisheries Case (United Kingdom v Norway) (Judgment) [1951] ICJ Reports 116, at 131.
13. ^ See North Sea Continental Shelf cases, note 6 at 229 per Judge Lachs.
14. ^ North Sea Continental Shelf cases, note 6 at 43.
15. ^ See North Sea Continental Shelf cases, note 6 at 44.
16. ^ Legality of Nuclear Weapons Advisory Opinion (GA), note 8.
17. ^ Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v Malta) (Judgment) [1985] ICJ Reports 13 at 29; Legality of Nuclear Weapons Advisory Opinion (GA), note 8 at 16.
18. ^ Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Reports 16 at 47.
19. ^ North Sea Continental Shelf cases, note 6 at 38.
20. ^ North Sea Continental Shelf cases, note 6 at 41. See also Trial of the Major War Criminals before the International Military Tribunal, Vol. 1, Judgment, 171 at 253-4.
21. ^ Amerasinghe, C., The Law of the International Civil Service, 2nd rev. edn, vol. 1 (Clarendon Press: Oxford, 1994) at 151-8.
22. ^ See North Sea Continental Shelf cases, note 6 at 26; Flegenheimer Claim 25 ILR 91; Case Concerning the Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Reports 6 at 32-3.
23. ^ Nuclear Tests Cases (Australia v France; New Zealand v France) [1974] ICJ Reports 253 at 268.
24. ^ River Meuse Case (Netherlands v Belgium) PCIJ Reports Series A/B No 70 76 at 76 per Judge Hudson.
25. ^ Case Concerning the Frontier Dispute (Burkina Faso v Republic of Mali) (Judgment) [1986] ICJ Reports 554 at 567-8; North Sea Continental Shelf cases, note 6 at 46-50.
26. ^ International Status of South-West Africa (Advisory Opinion) [1950] ICJ Reports 128 at 148.
27. ^ Article 59 of the ICJ Statute Statute of the International Court of Justice.

[edit] References

source of international law

Jump to: navigation, search

Sources of international law are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories. During the 19th century, it was recognised by legal positivists that a sovereign could limit its authority to act by consenting to an agreement according to the principle pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice, and preserved in Article 38(1) of the 1946 Statute of the International Court of Justice.^[1]
Article 38(1) is generally recognised as a definitive statement of the sources of international law. It requires the Court to apply, among other things, (a) international conventions "expressly recognized by the contesting states", and (b) "international custom, as evidence of a general practice accepted as law". To avoid the possibility of non liquet, sub-paragraph (c) added the requirement that the general principles applied by the Court were those that had been "the general principles of the law recognized by civilized nations". As it is states that by consent determine the content of international law, sub-paragraph (d) acknowledges that the Court is entitled to refer to "judicial decisions" and the most highly qualified juristic writings "as subsidiary means for the determination of rules of law".
On the question of preference between sources of international law, rules established by treaty will take preference if such an instrument exists. It is also argued however that international treaties and international custom are sources of international law of equal validity; this is that new custom may supersede older treaties and new treaties may override older custom. Certainly, judicial decisions and juristic writings are regarded as auxiliary sources of international law, whereas it is unclear whether the general principles of law recognized by 'civilized nations' should be recognized as a principal or auxiliary source of international law.
It may be argued that the practice of international organizations, most notably that of the United Nations, as it appears in the resolutions of the Security Council and the General Assembly, are an additional source of international law, even though it is not mentioned as such in Article 38(1) of the 1946 Statute of the International Court of Justice. Article 38(1) is closely based on the corresponding provision of the 1920 Statute of the Permanent Court of International Justice, thus predating the role that international organizations have come to play in the international plane. That is, the provision of Article 38(1) may be regarded as dated, and this can most vividly be seen in the mention made to 'civilized nations', a mentioning that appears all the more quaint after the decolonization process that took place in the early 1960s and the participation of nearly all nations of the world in the United Nations.
It is also possible, though less common, for a treaty to be modified by practices arising between the parties to that treaty. The other situation in which a rule would take precedence over a treaty provision would be where the rule has the special status of being part of the jus cogens.

international law

Main article: Sources of international law

Sources of International Law are the materials and processes out of which the rules and principles regulating the international community developed. They have been influenced by a range of political and legal theories. During the 20th century, it was recognized by legal positivists that a sovereign state could limit its authority to act by consenting to an agreement according to the principle pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice, and preserved in Article 7 of the 1946 Statute of the International Court of Justice.

[edit] Public international law

Main article: Public international law

Public international law (or international public law) concerns the relationships between the entities or legal persons which are considered the subjects of international law, including sovereign nations, the legal status of the Holy See, international organizations (including especially intergovernmental organizations such as the United Nations), and in some cases, movements of national liberation (wars of national liberation) and armed insurrectional movements (see insurgency). Norms of international law have their source in either:

1. custom, or customary international law (consistent provincial practice accompanied by opinio juris),
2. globally accepted standards of behaviour (peremptory norms known as jus cogens or ius cogens), or
3. codifications contained in conventional agreements, generally termed treaties.

Article 13 of the United Nations Charter obligates the UN General Assembly to initiate studies and make recommendations which encourage the progressive development of international law and its codification. Evidence of consensus or state practice can sometimes be derived from intergovernmental resolutions or academic and expert legal opinions (sometimes collectively termed soft law).
International law has existed since the Middle Ages but much of its modern corpus began developing from the mid-19th century.Two sophisticated legal systems developed in the Western World: the codified systems of continental European states (Civil Law) and the judge-made law of England (Common Law) The fall of the Roman civilization did not result in the loss of the concepts of Roman Law. Starting in the later Middle Ages, unlegislated Roman law (ius commune or lex mercatoria) was applied by merchants in northern Italian city states and north-western European countries as the basis for commercial (and other) relationships. In the 20th century, the two World Wars and the formation of the League of Nations (and other international organizations such as the International Labor Organization) all contributed to accelerate this process and established much of the foundations of modern public international law. After the failure of the Treaty of Versailles and World War II, the League of Nations was replaced by the United Nations, founded under the UN Charter. The UN has also been the locus for the development of new advisory (non-binding) standards, such as the Universal Declaration of Human Rights. Other international norms and laws have been established through international agreements, including the Geneva Conventions on the conduct of war or armed conflict, as well as by agreements implemented by other international organizations such as the ILO, the World Health Organization, the World Intellectual Property Organization, the International Telecommunication Union, UNESCO, the World Trade Organization, and the International Monetary Fund. The development and consolidation of such conventions and agreements has proven to be of great importance in the realm of international relations.

civil procodure code

transfer of property act 1882

Entry 6 of List III (Concurrent List) of Seventh Schedule to Constitution reads ‘Transfer of property other than agricultural land; registration of deeds and documents’. Thus, transfer of property  is a ‘Concurrent Subject’. Both Central and State Government can take legislative action in respect of transfer of property except that relating to agricultural land. [Transfer of agricultural land is a State subject under Entry 18 of List II (State List)]

The Act proposes to prescribe law relating to transfer of property by act of parties. Thus, the Act applies only to voluntary transfer or property. It does not cover transfer of property by ‘will’.

Section 4 of the Act clarifies that the part of the Act which relates to contracts shall be taken as part of Indian Contract Act and some specified sections shall be read as supplemental to Indian Registration Act. Thus, the Act is complimentary to Indian Contract Act and Registration Act. The Act applies both to movable and immovable property.

Transfer of Property – ‘Transfer of Property’ means an act by which a living person conveys property, in present or future, to one or more living persons, or to himself or to himself and one or more other living persons. ‘Living person’ includes a company or association or body of individuals, whether incorporated or not. [section 5]. - - The property may be movable or immovable, present or future. - - Such transfer can be made orally, unless transfer in writing is specifically required under any law. [section 9]. - - Any person competent to contract and entitled to transferable property, or authorised to dispose of transferable property on his own, is competent to transfer such property. The property can be transferred wholly or in part. It can be transferred either absolutely or conditionally. Such transfer can be only to the extent and in manner allowed and prescribed by law. [section 7].

Sale of immovable property – ‘Sale’ is a transfer of ownership in exchange for a price paid or promised or part-paid and part promised. Such transfer in case of tangible immovable property of value of Rs 100 or more can be made only by a registered instrument. Delivery of tangible immovable property is made when seller places the buyer, or such person as he directs, in possession of property. Thus, delivery of immovable property can be only by handing over actual possession to buyer or to a person authorised by buyer. [section 54].

Mortgage – ‘Mortgage’ is the transfer of an interest in specific immovable property for the purpose of securing payment of money advanced or to be advanced, by way of loan or an existing or future debt. The transferor is called a mortgagor, the transferee a mortgagee, the principal money and interest of which payment is secured are called as ‘mortgage money’ and the instrument by which transfer is effected is called a mortgage-deed.  [section 58(a)]. Mortgage can be * simple mortgage * Mortgage by conditional sale * Usufructuary mortgage * English Mortgage * Mortgage by deposit of title deeds or * Anomalous mortgage.

When mortgagee can take possession of mortgaged property in case of default - Under provisions of section 69 of Transfer of Property Act, mortgagee can take possession of mortgaged property and sale the same without intervention of Court only in case of English mortgage, if there is default of payment of mortgage money. In addition, mortgagee can take possession of mortgaged property where there is specific provision in mortgage deed and the mortgaged property is situated in towns of Kolkata, Chennai or Mumbai. In other cases, possession of property can be taken only with intervention of Court. [English Mortgage is where mortgagor binds himself to repay the mortgaged money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer the property to the mortgagor upon payment of the mortgage-money as agreed. - section 58(e) of Transfer of Property Act].

Charge – Where immovable property of one person is, by act of parties or by operation of law, made security for payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all provisions in respect of ‘simple mortgage’ will apply to such charge. [section 100]. [Mortgage is not a ‘charge’ as per section 100 of Transfer of Property Act, but it will be a ‘charge’ for purpose of registration under Companies Act, as per section 124 of Companies Act].

A 'charge' is not 'mortgage'. In every mortgage, there is 'charge', but every charge is not a mortgage. Section 100 of Transfer of Property Act states that if immovable property is made as security for payment of money and if it does not amount to mortgage, then the later person is said to have a charge on property. However, a 'charge' does not create an interest in the property. - Dattatreya Mote v. Anand Datar - (1994) 2 SCC 799. Thus, no particular form is necessary to create 'charge'.  [However, for purpose of registration under Companies Act, ‘charge’ includes mortgage].

Lease of immovable property – A lease of immovable property is transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity. Such transfer of right should be in consideration of a price paid or promised, or of money, or a share of crops, or service or anything of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. [section 105]. Lease of property from year to year or for any term exceeding one year can be made only by registered instrument. [section 107].

Exchange – When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an ‘exchange’. [section 118].

Actionable Claim – ‘Actionable claim’ means a claim to any debt or to any beneficial in movable property not in possession (either actual or constructive) of the claimant. The debt should be other than a debt secured by mortgage of immovable property or pledge of movable property. The claim should be such be such as Civil Court would recognise as affording grounds for relief. Such debt or beneficial interest be existent, accruing, conditional or contingent. [section 3 para 6]. Such transfer of an actionable claim shall be effected only by execution of an instrument is writing. [section 130]. - - One normal example is that receivable from a person is ‘actionable claim’, which can be transferred to another (e.g. one bank may transfer some of its receivables to another)

specific Reliefs Act 1963

Specific Reliefs Act is complimentary to provisions of Contract Act and Transfer of Property Act, as the Act applies both to movable property and immovable property. The Act applies in cases where Court can order specific performance of a contract or act. As per section 4, specific relief can be granted only for purpose of enforcing individual civil rights and not for the mere purpose of enforcing a civil law.

‘Specific performance’ means Court will ask the party to perform his part of agreement, instead of asking him to pay damages to other party.

Recovering possession of immovable property –  * A person who is entitled to possession of a specific immovable property may recover it in the manner provided in Code of Civil Procedure. (section 5) * If any person is disposed without his consent, of immovable property otherwise than by course of law, he can recover possession, even if any other title is set up in such suit. Such suit shall be brought within 6 months. No suit can be filed against Government for recovery of possession. [section 6]. - - That is why it is termed as ‘possession is 9 points in law’. Even an unlawful possession of immovable property can be taken away only by lawful means and not forcefully.

Recovering possession of specific movable property –  * A person who is entitled to possession of a specific movable property may recover it in the manner provided in Code of Civil Procedure. (section 7) * If any person is in possession or control of a specific movable property of which he is not owner, he can be compelled to specifically deliver it to the person entitled to immediate possession, in cases specified in section 6.  - - Thus, if a person holding the movable property is owner of goods, he cannot be compelled to deliver it to other. However, in other cases, he can be compelled to deliver it, even if other person is not owner, as long as he is entitled to its immediate possession.

Specific performance of contract – Specific performance of contract can be ordered, at discretion of Court, in following cases – (a) Where there exists no standard for ascertaining damage caused by the non-performance of act agreed to be done or (b) When the act agreed to be done is such that compensation in money for non-performance will not give sufficient relief. [section 10]. As per explanation (ii) to section 10, breach of contract in respect of movable property can be relieved (by paying damages) unless the property is not an ordinary article of commerce or is of specific value or interest to the tariff, or consists of goods which are not easily available in the market. - - In other words, Court may order to deliver specific article only if it is special or unique article, not  available in market. In other cases, Court will order damages but not order specific performance of contract. - - In case of immovable property, normally, specific performance will be ordered, as such property is usually unique. - - Section 12(1) states that Court shall not order performance of part of contract, except in cases specified in that section.

Contracts which cannot be specifically enforced – Following contracts cannot specifically enforced – (a) Where compensation is adequate relief (b) Contract runs into such minute or numerous details or depends on personal qualifications of parties or is such that Court cannot enforce specific performance of its material terms (c) Contract which in its nature is determinable (d) Contract, performance of which involves a continuous duty, which Court cannot supervise. [section 14]. - - In other words, in case of movable articles or contract of intricate nature, specific performance will normally not be ordered by Court. - - Specific performance of contract of personal nature cannot be ordered.

Discretionary powers of Court – Jurisdiction of Court to decree specific performance is discretionary. Court will not order specific performance merely because it is lawful to do so. [section 20(1)]. Court will consider various aspects before issuing decree for specific performance. - - Court can grant compensation in lieu of even in addition to specific performance. [

Other cases when Court can order specific performance – (a) Order rectification of instrument if it does not reflect real intention of parties. This may happen through fraud or mutual mistake. [section 26] (b) Order rescission of contract (section 27) (c) Cancellation of instrument by getting  declared that it is void (section 31

Sale of goods Act 1930

Sale of Goods Act is one of very old mercantile law. Sale of Goods is one of the special types of Contract. Initially, this was part of Indian Contract Act itself in chapter VII (sections 76 to 123). Later these sections in Contract Act were deleted, and separate Sale of Goods Act was passed in 1930.

The Sale of Goods Act is complimentary to Contract Act. Basic provisions of Contract Act apply to contract of Sale of Goods also. Basic requirements of contract i.e. offer and acceptance, legally enforceable agreement, mutual consent, parties competent to contract, free consent, lawful object, consideration etc. apply to contract of Sale of Goods also.

Contract of Sale - A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and another. [section 4(1)]. A contract of sale may be absolute or conditional. [section 4(2)]. 

Thus, following are essentials of contract of sale - * It is contract, i.e. all requirements of ‘contract’ must be fulfilled * It is of ‘goods’ * Transfer of property is required * Contract is between buyer and seller * Sale should be for ‘price’ * A part owner can sale his part to another part-owner * Contract may be absolute or conditional.

How Contract of sale is made - A contract of sale is made by an offer to buy or sell goods for a price and the acceptance of such offer. The contract may provide for the immediate delivery of the goods or immediate payment of the price or both, or for the delivery or payment by instalments, or that the delivery or payment or both shall be postponed. [section 5(1)]. Subject to the provisions of any law for the time being in force, a contract of sale may be made in writing or by word of mouth, or partly in writing and partly by word of mouth or may be implied from the conduct of the parties. [section 5(2)]. Thus, credit sale is also a ‘sale’.  - - A verbal contract or contract by conduct of parties is valid. e.g. putting goods in basket in super market  or taking food in a hotel.

Two parties to contract - Two parties are required for contract. - - “Buyer” means a person who buys or agrees to buy goods. [section 2(1)]. “Seller” means a person who sells or agrees to sell goods. [section 2(13)].  A part owner can sale his part to another part-owner. However, if joint owners distribute property among themselves as per mutual agreement, it is not ‘sale’ as there are no two parties.

Contract of Sale includes agreement to sale - Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereaf­ter to be fulfilled, the contract is called an agreement to sell. [section 4(3)]. An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. [section 4(4)]. The provision that contract of sale includes agreement to sale is only for the purposes of rights and liabilities under Sale of Goods Act and not to determine liability of sales tax, which arises only when actual sale takes place.

Transfer of property -  “Property” means the general property in goods, and not merely a special property. [section 2(11)]. In layman’s terms ‘property’ means ‘ownership’. ‘General Property’ means ‘full ownership’. Thus, transfer of ‘general property’  is required to constitute a sale. If goods are given for hire, lease, hire purchase or pledge, ‘general property’ is not transferred and hence it is not a ‘sale’.

Possession and property - Note that ‘property’ and ‘possession’ are not synonymous. Transfer of possession does not mean transfer of property. e.g. - if goods are handed over to transporter or godown keeper, possession is transferred but ‘property’ remains with owner. Similarly, if goods remain in possession of seller after sale transaction is over, the ‘possession’ is with seller, but ‘property’ is with buyer.

Goods - “Goods” means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. [section 2(7)].

Price - “Price” means the money consideration for a sale of goods. [section 2(10)]. Consideration is required for any contract. However, in case of contract of sale of goods, the consideration should be ‘price’ i.e. money consideration. 

Ascertainment of price - The price in a contract of sale may be fixed by the con­tract or may be left to be fixed in manner thereby agreed or may be determined by the course of dealing between the parties. [section 9(1)]. Where the price is not determined in accordance with the foregoing provisions, the buyer shall pay the seller a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case. [section 9(2)].

Conditions and Warranties - Opening para of section 16 makes it clear that there is no implied warranty or condition as to quality of fitness of goods for any particular purpose, except those specified in Sale of Goods Act or any other law. - - This is the basic principle of caveat emptor’ i.e. buyer be aware. However, there are certain stipulations which are essential for main purpose of the contract of sale of goods. These go the root of contract and non-fulfilment will mean loss of foundation of contract. These are termed as ‘conditions’. Other stipulations, which are not essential are termed as ‘warranty’. These are collateral to contract of sale of goods. Contract cannot be avoided for breach of warranty, but aggrieved party can claim damages. - - A breach of condition can be treated as breach of warranty, but vice versa is not permissible.

A stipulation in a contract of sale with reference to goods which are the subject thereof may be a condition or a warranty. [section 12(1)]. A condition is a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated. [section 12(2)]. A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated. [section 12(3)]. Whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the construction of the con­tract. A stipulation may be a condition, though called a warranty in the contract. [section 12(4)].

Where a particular stipulation in contract is a condition or warranty depends on the interpretation of terms of contract. Mere stating ‘Conditions of Contract’ in agreement does not mean all stipulations mentioned are ‘conditions’ within meaning of section 12(2).

When condition to be treated as warranty - Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition or elect to treat the breach of the condition as a breach of warran­ty and not as a ground for treating the contract as repudiated. [section 13(1)]. Where a contract of sale is not severable and the buyer has accepted the goods or part thereof, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty and not as a ground for rejecting the goods and treating the contract as repudiated, unless there is a term of the con­tract, express or implied, to that effect. [section 13(2)]. Nothing in this section shall affect the case of any condition or warranty fulfillment of which is excused by law by reason of impossibility or otherwise. [section 13(3)].

Time of payment is not essence of contract but time of delivery of goods is, unless specified otherwise - Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale. Whether any other stipula­tion as to time is of the essence of the contract or not depends on the terms of the contract. [section 11]. As a general rule, time of payment is not essence of contract, unless there is specific different provision in Contract. In other words, time of payment specified is ‘warranty’. If payment is not made in time, the seller can claim damages but cannot repudiate the contract.

Caveat Emptor - The principle termed as ‘caveat emptor’ means ‘buyer be aware’. Generally, buyer is expected to be careful while purchasing the goods and seller is not liable for any defects in goods sold by him. This principle in basic form is embodied in section 16 that subject to provisions of Sale of Goods Act and any other law, there is no implied condition or warranty  as to quality or fitness of goods for any particular purpose. As per section 2(12), “Quality of goods” includes their state or condition.

Transfer of property as between seller and buyer - Transfer of general property is required in a sale. ‘Property’ means legal ownership. It is necessary to decide whether property in goods has transferred to buyer to determine rights and liabilities of buyer and seller. Generally, risk accompanies property in goods i.e. when property in goods passes, risk also passes. If property in goods has already passed on to buyer, seller cannot stop delivery of goods even if in the meanwhile buyer has become insolvent. - - - Where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained. [section 18].

Property passes when intended to pass - Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. [section 19(1)].  For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case. [section 19(2)]. Unless a different intention appears, the rules contained in sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. [section 19(3)].

Specific goods in a deliverable state - Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immate­rial whether the time of payment of the price or the time of delivery of the goods, or both, is postponed. [section 20].

Auction sale - Auction sale is special mode of sale. The sale is made in open after making public announcement. Buyers assemble and make offers on the spot. Person offering to pay highest price gets the goods. Usually, auctioneer is appointed to conduct auction. Higher and higher bids are offered and sale is complete when auctioneer accepts a bid.- - - In the case of a sale by auction— (1) where goods are put up for sale in lots, each lot is prima facie deemed to be the subject of a separate contract of sale; (2) the sale is complete when the auctioneer announces its completion by the fall of the hammer or in other customary man­ner; and, until such announcement is made, any bidder may retract his bid; (3) a right to bid may be reserved expressly by or on behalf of the seller and, where such right is expressly so re­served, but not otherwise, the seller or any one person on his behalf may, subject to the provisions hereinafter contained, bid at the auction;  (4) where the sale is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person; and any sale contravening this rule may be treated as fraudulent by the buyer; (5) the sale may be notified to be subject to a reserved or upset price; (6) if the seller makes use of pretended bidding to raise the price, the sale is voidable at the option of the buyer. [section 64].

Delivery of goods to buyer - The Act makes elaborate provisions regarding delivery of goods to buyer. It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale. [section 31]. Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller shall be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer shall be ready and willing to pay the price in exchange for possession of the goods. [section 32]. - - Note that this is ‘unless otherwise agreed’, i.e. buyer and seller can agree to different provisions in respect of payment and delivery.

Acceptance of goods by buyer - Contract of Sale is completed not by mere delivery of goods but by acceptance of goods by buyer. ‘Acceptance’ does not mean mere receipt of goods. It means checking the goods to ascertain whether they are as per contract. - - -  Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conform­ity with the contract. [section 41(1)]. - - Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract. [section 41(2)].

Buyer’s and Seller’s duties  - The Act casts various duties and grants certain rights on both buyer and seller.

Rights of unpaid seller against the goods - After goods are sold and property is transferred to buyer, the only remedy with seller is to approach Court, if the buyer does not pay. Seller has no right to take forceful possession of goods from buyer, once property in goods is transferred to him. However, the Act gives some rights to seller if his dues are not paid.

Suits for breach of the contract - Unpaid seller can exercise his rights to the extent explained above. In addition, seller can exercise following rights in case of breach of contract. Buyer has also rights in case of breach of contract.

Measure for compensation and  damages – The Sale of Goods Act does not specify how to measure damages. However, since the Act is complimentary to Contract Act, measure of compensation and damages will be as provided in sections 73 and 74 of Contract Act