Section 238 - Effect, on agreement, of misrepresentation or fraud by agent

 

Misrepresentations made, or frauds committed, by agents acting in the course of their business for their principals, have the same effect on agreements made by such agents as if such misrepresentations or frauds had been made or committed by the principals; but misrepresentations made, or frauds committed, by agents, in matters which do not fall within their authority, do not affect their principals.

Illustration

(a) A, being B's agent for the sale of goods, induces C to buy them by a misrepresentation, which he was not authorized by B to make. The contract is voidable, as between B and C, at the option of C.

(b) A, the captain of B's ship, signs bills of lading without having received on board the goods mentioned therein. The bills of lading are void as between B and the pretended consignor.

Study Notes:

The Section 238 is all about Agent guilty of Fraud. Where an Agent is guilty of fraud or misrepresentation in matters that are outside the scope of his authority, he is personally liable, and do not affect his Principal.

Thus According to Section 238, The Principal is liable for any fraud or misrepresentation made by his agent during the course of his business, as if the fraud or misrepresentation was done by the Principal himself.

The liability of the principal is based on the rule ‘Qui facit per alium facit per se’, which means the act of the agent is the act of the principal.

In fact if an agent commits a tort or other wrong (e.g. misrepresentation, fraud, etc.) during his agency whilst acting within the scope of his actual or apparent authority, the principal is liable. But the agent is also personally liable and he may be sued also. The principal is liable even if the tort is committed exclusively for the benefit of the agent and against the interests of principal.

Under section 238 of the Act misrepresentation or fraud committed by an Agent may be classified into two categories:-

i) Under his actual or ostensible authority. the principal is liable for the acts which fall under actual or ostensible authority.

ii) Which is not covered within his authority, the principal is not liable for the acts which do not fall under actual or ostensible authority. Where an Agent is guilty of fraud or misrepresentation in matters that are outside the scope of his authority, he is personally liable, and do not affect his Principal.

Depending upon the acts of an agent, the fraud or misrepresentation done by agent following are the variations: -

Agent exceeds authority & act not ratified: Where an Agent acts either without any authority or exceeds his authority, he shall be held personally liable when the principal does not ratify his acts.

Agent receives or pays money: Where an Agent receives or pays money by mistake or fraud to a third party, he shall be personally liable to such third party. Also he can personally sue the third party if the fraud or mistake is accountable to such third party.

Personal liability of an agent to third party: -

An agent is personally liable in following cases:

a) where agent has agreed to be personally liable to the third party.

b) where an agent acts for a principal residing abroad.

c) when an agent signs a negotiable instrument in his own name without making it clear that he is signing it only as agent.

d) when an agent acts for a principal who cannot be sued (e.g. minor principal).

e) an agent is liable for a breach of warranty of authority. Where a person contracts as agent without any authority, there is breach of warranty of authority. He is liable to the person who has relied on the warranty of authority and has suffered loss.

f) Where authority is one coupled with interest or where trade, usage or custom makes the agent personally liable, he will be liable to the third party.

g) he is also liable for the torts committed in the course of agency.

Case Laws:

1) A leading case on this subject is of Lloyds v/s Grace Smith in which it was held that a principal is liable for the fraud of his agent within the scope of his authority whether the fraud is committed for the benefit of the Principal or for the benefit of Agent.

2) National Bank of Lahore v. Sohan Lal: - the manager of a bank, tampered with the locks of the lockers in which plaintiffs’ valuables were kept, the bank was held vicariously liable for the loss which has been caused to a customer due to the theft of their valuables from the lockers.

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C001 Hours of Work (Industry) Convention, 1919

 ü Vande Matram! India always supported International Law since the era of British Rule. For that India had signed many treaties and conventions. So you are welcome in the series of Treaties Ratified by India.

ü Let’s talk about a convention related to labor which is ratified by the Government of India with the International Labour Organisation (ILO).

ü Since 1919, means since the time of the inception of ILO, India is implementing labor laws in its territory.

ü C-001 Hours of Work (Industry) Convention, 1919 is the very first convention of ILO.

ü It was adopted in General Conference held in Washington and organized by the US government on Dt. 29^th October 1919.

ü Due to this convention the limit of maximum hours of working was fixed, which is 8 hours per day and 48 hours per week.

ü And hence the even today in all companies across the world the time of one working shift is 8 hours.

ü Convention is currently open for denunciation.

ü In 1919, Narayan Malhar Joshi who was the leader of the Indian Trade Union represented the labor of India in the ILO General Conference held in Washington.

If you want to know more about Narayan Malhar Joshi then let me know in the comments. Bharat Mata ki Jay.

C-127 Maximum Weight Convection 1967

 Vande Matram! In this article, I am sharing some one-liners about C-127 Maximum Weight Convention, 1967.

·        This is a labor welfare-related treaty and is concerned with permissible weight to be carried by one worker.

·        Date of Adoption: 28th June 1967

·        Date of coming into force: 10th March 1970

·        Place: Geneva

·        Passed in General Conference of International Labour Organisation (ILO)

·        It was the 51^st session of ILO conducted on 7^th June 1967

·        As per the C-127 convention of ILO, “Manual transport of loads” means any transport in which the weight of the load is wholly by one worker, it covers the lifting and putting down of the loads.

·        As per the C-127 convention of ILO, “Regular Manual Transport of Loads” means which is continuously and principally devoted to the manual transport of the loads, or which normally includes, even though intermittently, the manual transport of loads.

·        As per the C-127 convention of ILO, “young worker” means a worker under 18 years of age.

·        This convention applies to all branches of economic activities.

·        As per Article 3 of C-127, if carrying loads is creating serious health hazards to a person then such person shall not be permitted to do the job of manual transportation of loads.

·        Article 5 of C-127 makes it compulsory that a worker who is assigned a job of manual transport of loads on regular basis should be trained adequately to avoid any health hazards as well as accidents.

·        Article 7 of C-127 limits the number of women and young workers for manual transport of heavy loads, and if they are assigned for this work then they must carry substantially lesser load permissible to carry for adult male workers.

·        The ratification of the members must be registered with the Director-General of ILO

·        After ratification, the member nation should implement the provisions of this C-127 by way of laws and acts as per the national practice within 12 months from such ratification.

·        India ratified the C-127 convention of ILO on 26^th March 2010 and it is now in force in India.

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MoU between India and Kyrgyz

 

Date of MoU: Signed and came into force on 11^th October 2021.

It is signed for bilateral cooperation. It is a bilateral type as only two nations are involved through their respective governments.

Basically by this MoU India will grant aid to Kyrgyz for the socio-economical development of Kyrgyz. By this MoU projects related to the socio-economic development of Kyrgyz, livelihood support, women empowerment, child welfare, and facilitation of community life, education, health training, agriculture, agro-industry, micro-irrigation, renewable energy, trade, transport, and communication, etc. will be funded by a Government of India.

This MoU is valid for the next five years.

This MoU was signed by the representatives of the Government of the Republic of India and the Government of the Republic of Kyrgyz.

The MoU was signed originally in Hindi, Kyrgyz, Russian and English languages. As it is the basic requirement of international treaties that they should be translated into the official languages of the involved nations.

Comment below to know about Kyrgyz.

Historical development of regulations related to legal profession

Vande Matram! Here you are to know about the historical developments in the formation of regulations related to the legal profession in India.

Introduction:

The legal profession is recognised as noblest profession and is of high calling. Neither is the legal profession a trade or a business; nor is an attorney a trader or a businessman. A lawyer has got to remember that he is expected to be a gentleman in the true sense of the term in every little or big act in his profession. No Government can function without laws and without the services of the legal profession. The legal profession in India, which exist today is the outcome of the legal system introduced by the British during the eighteenth century.

Establishment of Courts in India:

The rules of practice were formulated in India for the first time in the year 1726 when the Court of Record in the name of Mayor's Courts and Courts of Record in the name of Court of Oyer and Terminer and Gaol Delivery were established in the three Presidency towns of Calcutta, Madras and Bombay on September 24, 1726 by a Charter granted by King George I. However, no provision was made as to who could appear, argue and plead before such courts.

In 1774 the Supreme Court was established at Fort William in Bengal through a Charter issued by King George II. Clause II of the Charter authorised the Court to prescribe and regulate conditions for enrolment of attorney for appearance before the courts of law.

The Indian lawyers had no right of appearance in the Supreme Court of Judicature. It was only the English and Irish barristers and members of the Faculty of Advocates in Scotland who were allowed to practice in the Supreme Court. Thus, the Supreme Court was an exclusive preserve for members of the British Legal Profession.

The Supreme Courts at Bombay and Madras were established with the same jurisdiction and power as the Supreme Court at Calcutta had, and the same powers for the enrolment of advocates and attorneys-at-law were conferred on them with the exclusion of Indians to appear before such Courts.

Outside the metropolitan towns of Calcutta, Madras and Bombay local courts for the administration of civil and criminal justice were established in the mofussil areas. These courts were termed as Sadar-e-diwani adalat (District Civil Court) and Sadar-e-nizamat adalat (District Criminal Courts). The persons engaged in assisting the litigants and courts were called vakils.

The Bengal Regulation of 1793

The Bengal Regulation of 1793 created for the first time a regular legal profession and provided for the appointment of Hindus and Muslims as vakils or native pleaders in the Courts of civil judicature in the provinces of Bengal, Bihar and Orissa and gave to the Sadar-e-Diwani adalats, powers to enroll pleaders for all Company's Courts, to fix the retaining fee for pleaders, and to fix a scale based on a percentage of the value of the property.

The Bengal Regulation XXVII of 1814

The Bengal Regulation XXVII of 1814 empowered the pleaders to act as arbitrators and give legal opinions on payment of fees.

Legal Practitioners Act 1846

The Legal Practitioners Act 1846 made the following major changes in the then existing Regulations:

The office of pleaders was thrown open to all persons of whatever nationality or religion they were.

The Sadar Court had to satisfy itself about their character and qualification for the office.

Attorneys and barristers of any of Her-Majesty's Courts in India were eligible to plead in any of the Sadar Courts.

The pleaders were allowed to enter into agreements with their clients for their fees for professional services.

The barristers and attorneys of the Supreme Courts were empowered to practice in the Company's Court.

But the discrimination that the Indian legal practitioners could not appear before the Supreme Courts still persisted.

The Indian High Courts Act 1862 

In 1862 the Indian High Courts Act 1862 was passed. The Act is the beginning of reorganisation of judiciary in the country. The Act provided for the setting up of High Courts in place of Supreme Courts in the Presidency towns of Calcutta, Bombay and Madras and Sadar-e-Diwani adalat and Sadar-eNizamat adalats were established in other parts of the country.

The Act provided for making rules and regulation for enrolment of vakils, pleaders and attorneys. The persons so admitted were entitled to represent parties and appear on behalf of litigants before the courts and were subjected to the rules made by the High Court or direction issued by it from time to time.

Legal Practitioners Act 1879

Legal Practitioners Act 1879 consolidated the law relating to the legal practitioners. Under this Act all the different grades of the legal practitioners (except the revenue agents) were brought under the disciplinary jurisdiction of the High Court.

An advocate or vakil on the roll of any higher court, or a pleader of the Chief Court of the Punjab was entitled to practice in all the courts subordinate to the court on the roll of which he was entered and in the courts of all revenue officers, situated within the local limits of the appellate jurisdiction of such court subject to the rules in force.

As per this law the three high courts were having different criteria and procedure for enrolling a vakil, pleader or mukhtar. But no female were allowed to enroll as vakil, pleader or mukhtar under this Act.

Legal Practitioners' (Women) Act 1923

To remove the disqualification for enrolment as pleaders on the ground of sex the Legal Practitioners' (Women) Act 1923, was passed. The Act provided that "no women shall, by reason only of her sex, be disqualified from being admitted or enrolled as a legal practitioner." Thus since 1923 women have been getting enrolled as legal practitioners in all the courts and the number has been increasing year after year.

The Legal Practitioners' (Fees) Act 1926

The Legal Practitioners' (Fees) Act 1926, defined the right of legal practitioners to sue for their fees and their liabilities to be sued in respect of negligence and the discharge of their professional duties.

The Chamier Committee and The Indian Bar Council Act 1926

As stated earlier, there existed a sharp distinction between barristers and solicitors on the one hand, and between vakils and pleaders on the other. Also British barristers and solicitors enjoyed a number of special privileges which led to great dissatisfaction and resentment among the Indian legal practitioners. To resolve this Indian Bar Committee under the chairmanship of Sir Edward Chamier was constitued by Government of India. 

The Committee was asked to consider these points:  

(i) the proposals made from time to time for constituting an Indian Bar (whether an All India or Provincial Bar) with particular reference to the constitution, recognition, functions and authority of Bar Councils and their positions vis-a-vis High Courts; and

(ii) the extent to which it might be possible to remove the existing disparity between barristers, solicitors, vakils and pleaders.

To implement some of the major recommendations of the Chamier Committee and to consolidate and amend the law relating to the legal practitioners the Bar Council Act 1926 was passed. This Act provided for the constitution of separate Bar Councils as a corporate body for every High Court.

Disciplinary Proceedings:

The High Court was empowered to reprimand and suspend or remove from practice any advocate of the High Court for professional or other misconduct after giving a reasonable opportunity of hearing, against the action. Complaints against advocates for professional or other misconduct had to be made to the High Court. On receipt of a complaint, the High Court had to refer the case for enquiry to the Bar Council, or after consultation with the Bar Council, to a District Judge. The High Court had power to make such a reference suo motu, even if there was no complaint. Cases referred to a Bar Council had to be enquired into by a committee of the Bar Council (called tribunal) comprising of not less than three and not more than five members appointed by the Chief Justice of the High Court.

Justice S R Das Committee:

With the coming into force of the Constitution of India in 1950 and the establishment of a Supreme Court for India the need for an all India Bar was stressed by the legal fraternity. The Union Government accordingly set up a committee known as the All India Bar Committee under the chairmanship of Justice S. R. Das of the Supreme Court of India. The Committee considered at length questions of the constitution and powers of the State Bar Councils and the All India Bar Council and made detailed recommendations in 1953.

The Committee was of the view that the Bar should be made autonomous in matters relating to the profession in all respects. The Committee's recommendations got strength by the endorsement and approval of its recommendation by the Law Commission of India in 1953, which was presided over by the eminent jurist M. C. Setalvad, the then Attorney General of India.

The Law Commission of India in its fourteenth report on the Reform of Judicial Administration approved of the recommendations for the creation of a unified All India Bar as well as the establishment, composition and function of the State and All India Bar Councils.

Advocates' Act 1961:

As a result of the recommendations the Legal Practitioners Bill 1959 was introduced in the Lok Sabha on November 19, 1959 with a view to implement the recommendations of the All India Bar Committee and of the Law Commission's 14^th Report. When the Bill came to be passed, its name was changed from the Legal Practitioners Bill to the Advocates' Act and was passed in the year 1961 by the Parliament. It received the assent of the President of India on May 19, 1961.

The Act envisages for a single class of legal practitioners, namely, advocates, and has abolished the various categories of legal practitioners, such as pleaders, revenue agents, mukhtars, vakils, barristers and solicitors.

The Act provides for framing of rules prescribing the standards of professional conduct and etiquette to be followed by a practicing advocate. But the Act does not define as to who is a practicing advocate. A practicing advocate may, however be defined as an advocate who is entitled to practice and who holds himself out as ready and willing to do so, and not being otherwise employed in any other whole time occupation.

The Act also gives power to the Central Bar Council of India to recognize the degree in law for admission of advocates and prescribe standards of legal education. The Act further lays down exhaustively the provision relating to the constitution, powers and functions of the Bar Council of India as well as the State Bar Councils.

And thus the rules and regulations regarding legal profession are now established across India by enactment of Advocate' Act 1961.

Reference:

1) Professional Responsibility of Lawyers

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The legal profession and its responsibilities

Vande Matram my law friends. You are here to know about the legal profession and its responsibilities.

 

Introduction:

The legal profession is one of the oldest professions known to mankind and is having huge opportunities in today's modern world which is advancing and changing day by day. It is also one of the most important professions for the administration of justice and to maintain a balance between the legislature and the common people. It has been emphasized many times that, “A well-organized system of judicial administration proposes a properly equipped and proficient Bar.” Legal profession is always affected by the social, economical and political changes across the world. In India, the unitary character of India under its Constitution has influenced the country to have a unified bar. The pre-constitutional legal framework had to undergo a transformation for this purpose under the guidance of the Justice S R Das which led to the enactment of Advocates Act, 1961. 

A Lawyer and legal profession

Neither is the legal profession a trade or a business; nor is an attorney a trader or a businessman. A lawyer has got to remember that he is expected to be a gentleman in the true sense of the term in every little or big act in his profession. 

A lawyer, as part of a learned profession, has many obligations and duties of the honorable nature. It was not expected of a lawyer to bargain for any fee or to speculate on the result of litigation so as to determine his fees.

The responsibilities of a lawyer or advocate:

The Bar Council of India have made rules under section 49(1)(c) of the Advocates' Act 1961 prescribing the standards of professional conduct and etiquette to be observed by advocates. The rules so framed can be classified into five categories, viz., (1) duty to the court, (2) duty to the client, (3) duty to the opponent, (4) duty to colleagues and (5) restriction on other employment.

(1) First of all an advocate is having duty to the court. So an advocate shall, during the presentation of his case and while otherwise acting before a court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities.

(2) An advocate is having duty to the client. The main responsibility in this category is An advocate shall not ordinarily withdraw from engagements, once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned.

(3) As advocates are in the job of resolving disputes there are opponents and an advocate is having certain duty to the opponent. An advocate shall not in any way communicate or negotiate upon the subject matter of controversy with any party represented by an advocate except through that advocate. He shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the Court.

(4) As there are thousands of advocates practicing across the country there are some duty to the colleague so that everyone will get fair chance of practicing the profession. An advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or procuring his photograph to be published in connection with cases in which he has been engaged or concerned.

(5) An advocate is practicing the profession for full time. Hence there are certain restrictions on his employment in other businesses. An advocate shall not personally engage in any business, but he may be a sleeping partner in a firm doing business provided that, in the opinion of the appropriate State Bar Council, the nature of the business is not inconsistent with the dignity of profession.

 

Importance of legal profession:

The disputes can arise between any individuals, between any governments, between government and any person, and there are many more combinations of such disputes arising in society. And hence the legal profession is important because a) it helps in solving disputes between various entities, b) legal professional advise their clients the right legal remedy, c) legal professionals help in achieving legal remedy in the courts of law, d) the lawyers help the common people in upholding their basic rights, e) they help in preserving the Grundnorm i.e. constitution of our nation, f) They also help in maintaining a balance between the legislature, executive and judiciary.

Legal profession and Bar Councils

In India, the legal profession is regulated by Advocates Act, 1961. 

As per the Act, the State Bar Councils are constituted in each state of India (Section 3). The Bar Council of India is the All India Bar and is apex body to the state bar councils (Section 4). 

Members of Bar Council of India are - the Attorney General of India ex officio, the Solicitor General of India ex officio and one member elected from each of the State Bar Councils (Section 4).

The Bar Council of India lays down rules pertaining to standards of conduct and professional etiquette to be maintained by lawyers in court, with clients and opponents, and towards fellow advocates. The Bar Council of India is responsible for the promotion of legal education and lays down the standards of legal education in consultation with universities. Also it is responsibility of state bar councils to enroll the advocates on record.

Apart from the Bar Council of India and the State Bar Councils, almost every court in the country has Bar Associations of advocates that operate at a less formal level. These bar associations look after the welfare of advocates, represent their interests, and conduct numerous social and cultural activities of the bar, or even different sections of the bar.

Ethics and Bar Council of India:

The Bar Council of India still maintains strict standards with respect to the legal community. e.g. Rule 36 of the Bar Council of India Rules whereby the Indian Law firms/ lawyers are not allowed to advertise their practise in the market.  But it is evident that, Bar Council is also making rules as per the needs of globalisation and advancement in technology, from the amendment Rule 36 and add a proviso allowing advocates to maintain websites about themselves or their law firms in order to disseminate information, in order to enable people to make informed choices. The Bar Council of India is progressively reviewing the ethical standards with the demands of our time, in order to strike the best balance.

 

Conclusion

Among all the professions of the world, the Legal Profession is called the Noble Profession. This is because it often acts for noble causes for the common people and very basic foundation of this profession is noble. The Legal Practitioners act as the keepers and protectors of the law. Hence, they play a very important role in the society. Bar Councils are formed in each state of India with Bar Council of India as apex body. The role of Bar councils is to regulate the professional conduct in the legal profession in all aspects and to enroll the new advocates on record of the bar councils. BCI is having strict standards of the practice but it is also reviewing the impact of globalisation on the legal profession and making amendments in its rules as required.

References:

1) Importance of Legal Profession in India

2) Overview of the Legal Profession in India

3) Professional Responsibility of Lawyers

Negotiable Instruments Act, 1881 - one liners

Vandemataram! Here is the collection of one-liners related to Negotiable Instruments Act, 1881

* It is colonial law still in force.

* Long title: An Act to define and Law relating to negotiable instruments which are Promissory Notes, Bills of Exchange and cheques

* Imperial Legislative Council (India) enacted this act.

* Enacted: 9 December 1881

* Commenced: 1 March 1882

* The Act was originally drafted in 1866 by the 3rd Indian Law Commission and introduced in December 1867 in the Council and it was referred to a Select Committee.

* The most important class of Credit Instruments that evolved in India were termed Hundi. 

* In a sense, Hundis represent the oldest surviving form of credit instrument.

* The Hundis were used in trade and credit transactions; also they were used as remittance instruments for the purpose of transfer of funds from one place to another. 

* In Modern era Hundi served as traveller's cheque.

* Section 1 deals with short title of the act, it's local extent, Commencement of the act and most importantly Saving of usages relating to hundis.

*