The current legislation was passed by the Socialist government of Felipe González in 1988, but it has only been widely implemented in the last few years, under another Socialist (PSOE) administration, with far-reaching consequences. The difference is that the Ministry…
Computer hacking is a term that is used to refer to the unscrupulous use of technology to obtain illegal access to delicate data that is stored and computer, which obstructs the security and confidentiality of the computer user. It is a method which is employed by a lot of identity thieves to steal valuable personal information. Most hackers focus on hacking personal computer of individuals who are connected online while other’s focus their hacking energy into accessing company computers.
How does hacking affect its individual victims? Read on if you want to know more.
1. Hacking is a clear breach of the security of the computer. It renders important user data exposed and risks the user into various threats like identity theft. Various hacking activities are directed mainly towards exposing or stealing confidential user information like social security numbers, credit card numbers, bank account information and individual photographs. These important personal information, when in the hands of computer hackers, can be very vulnerable to illegitimate use and manipulation like that of identity theft’s.
2. When your computer is hacked, the criminals may delete valuable information and sensitive data inside your computer. They can deliberately or unwittingly manipulate sensitive data for their own personal gain. This gain can be both financial, as with the cases of credit card identity theft, or medical, like that of medical identity theft.
3. Denial of service attack is another consequence of attacking. This is typically known as the DOS attack, which simply makes various computer resources unavailable to its authorized users. For instance, hackers may change your log in username and password which thereby blocks you totally out of the entire computer system. More often than not, websites are the ones who fell prey to these DOS attacks, which makes the entire website unusable to all its members.
4. Hacking can also lead to theft of essential business information like client’s database as well as customer’s record can be either lost of maneuvered by computer hacker’s. These databases can be sold to identity theft sites where personal information is being posted for sale to other individuals who might otherwise have other purposes for this information.
5. Information that is crucial to national security, confidential government data, data regarding national defense, security and crimes, can be exposed through computer hacking and these can have very serious consequences to the welfare of the entire society. It can create total panic among the people especially if exaggerated information is posted and issues are blown out of proportion.
These are among the various effects of computer hacking. If you want to keep yourself protected, you need a reliable antivirus program as well as an anti-spyware program. You also need to closely monitor the various programs that you download online as some of them come with a free virus that can be very destructive to your computer.
Hacking is a real threat, just like identity theft. You need to keep yourself protected and secure against any attacks from the outside.
How many times has it happened that a leader enters the room and you can feel a burst of positive energy floating around him, touching each and everyone standing or sitting near him? Even before he says a single word, you know that he means business and knows how to get the job done. Even before your first interaction with him, you have become his admirer; you want to follow him, observe him and work with him. How is all that possible? It is all about the aura a person carries with him. As much as it used in regular conversations, it is hard to define aura. Some call it a luminous radiation surrounding a person while others term it as a positive energy carried by a person that influences individuals and things nearby.
Who has an aura?
Character associated with great leaders of all generations; be it the religious ones or the political ones. For instance, people believe that Lord Buddha’s aura had a radius of 3,500 km from where he sat. Indira Gandhi’s aura covered a range of over 1,000 km easily. Their aura boosted their personality and made them stand out in more ways than more. Today, the same aura is needed by any corporate leader to steer his organisation during tough times and get the people to rally behind him when the going gets tough.
How to develop a positive aura
The first step is to understand that people are not born with an aura of leadership; it needs to be drawn up over time. With that said, you cannot just jump out of bed and decide that today be the day when I would start building my aura. If you have not given a thought to it till now, you need an executive coach to help you with the process and bring out your leadership aura. While leaders are usually good with their skill sets, they also need improvement in certain areas which they may not realise intuitively. These shortcomings may be playing the hindrance role in the establishment of a positive leadership aura. These can be picked out by the executive coach and worked. Some of the most important requirements for development of a positive atmosphere are giving attention to minute details and being open to sharing experiences. While for normal people, details are a time-consuming aspect of work that ideally avoided, leaders dig deeper into it and reach the point that matters the most.
Changing your personality to develop an aura that leaves others in awe is a tough task, which is even tougher when tried achieving alone. So while you are at it, take the help of your executive coach to make sure you are on the correct path.
Sometimes it is difficult to know which part of the law applies to your case, especially if you are dealing with what an outsider may view as a complicated financial dispute. If you hold North Carolina securities, where do you go for help? Rest assured, there are attorneys in business and financial law who can advise you in regards securities that you may hold. But until you have retained the services of a local lawyer, let’s get up to speed on the terminology of securities law so you are ready for your first appointment.
What are securities?
A security is a fungible, negotiable instrument representing financial value. Most securities will be represented either by a certificate, or more commonly, will be in electronic form only (non-certificated). As in the rest of the country, North Carolina securities certificates will be either “bearer” or “registered”. A bearer securities certificate is one that entitles the holder to rights simply by holding the security. A registered certificate is one that only entitles the holder to rights if their name appears on a security register maintained by the issuer or the issuers appointed intermediary.
Securities include shares of corporate stock or mutual funds, corporation or government issued bonds, stock options or other options, limited partnership units, and various other formal investment instruments. In North Carolina, securities may be issued by commercial companies, government agencies, local authorities and international and supranational organizations (such as the World Bank). The primary goal of purchasing securities is investment, with an eventual aim of receiving income or capital gain; (capital gain being the difference between a lower buying price and a higher selling price).
Securities are broadly categorized into three categories.
1. Debt securities:
These include debentures, bonds, deposits, notes and commercial paper (in some circumstances). If you hold one of these debt securities, your North Carolina securities attorney will advise that you are usually entitled to the payment of principal and interest on these. There may also be contractual rights a good lawyer will advise you of, including the right to information.
Debt securities are usually fixed term securities redeemable at the end of the term, they may be secured or unsecured or protected by collateral. Debt securities may offer some control to investors if the company is a start-up or an established business undergoing ‘restructuring’. In these cases, if interest payments are missed, the creditors may take control of the company and liquidate it to recover some of their investment. People favor buying debt securities because of the usually higher rate of return than bank deposits. However, debt securities issued by a government (bonds) usually have a lower interest rate than securities issued by commercial companies. This applies nationally and to North Carolina securities.
2. Equity securities:
Common stock is the most popular type of equity security. Investors are called shareholders and they own a share of the equity interest of capital stock of a company, trust or partnership. It is like saying someone who invests in equity securities is buying a tiny part of a company (or a large part, depending on your budget!). As an investor you are not necessarily entitled to any payment, like the regular interest payment of a debt security. If a company goes bankrupt it is possible to lose your entire investment, as shareholders get paid last. If this happens it might be a good time to call your North Carolina securities lawyer for advice.
On the plus side, investing in equity securities can gives a shareholder access to profits and capital gains, something debt securities will not. The holder of debt securities receives only interest and repayment of principal no matter how well the issuer performs financially. Equity investment may also offer control of the business of the issuer.
3. Derivative contracts:
If you have invested in forwards, futures, options and/or swaps you have probably purchased a derivative. A derivative is perhaps obviously, derived from some other asset, index, event, value or condition (known as the underlying asset). Rather than trade or exchange the underlying asset, derivative traders enter into agreements to exchange cash or assets over time based on the underlying asset. A simple example is a futures contract: an agreement to exchange the underlying asset at a future date.
An attorney can provide more information about securities
Please note that this is not an exhaustive list of legitimate forms of securities. If you purchased what you were lead to believe was a type of security but it is not covered in the information here, don’t panic! However, for you own piece of mind, contact a securities lawyer if you believe that you have been a victim of securities fraud, if have been accused of securities fraud or a related crime, or if you simply have a legal question about buying or selling securities.
False Face Masks are considered to be living and breathing “faces” that carry a spirit’s presence with them. The masks are typically used in healing ceremonies to bring relief from health afflictions. There is a False Face Society among the Iroquois tribes and those who are cured with the help of False Faces automatically become members. Believers in traditional Iroquois thought do not believe or call these False Faces “masks” as they believe the faces are inhabited by living representations of spirits. False faces are even “fed” with a cornmeal “mush” and they accept gifts of tobacco for healing illnesses.
Iroquois legend has it that the beginning of the False Face Mask tradition came about because the “Creator,” “God,” “Divine Supreme Being,” whichever name you elect to use, encountered a stranger once, known in the Onondaga language as “Grandfather.” The Creator challenged Grandfather in his ability to move a mountain. Grandfather made the mountain shake and rumble but was unable to move it. The Creator said Grandfather had some power but not enough power to move the mountain. The Creator then moved the mountain to demonstrate his ability to Grandfather. The Creator told Grandfather not to look behind him when the mountain moved, but Grandfather was curious and when he turned to look, the mountain struck Grandfather in the face and left his face broken and smashed.
The Creator then employed Grandfather to protect his children but he knew the sight of Grandfather’s broken face would scare the children, so Grandfather was exiled to the forests and underground caves. To this day, sightings are reported of a lone figure, clothed in regal Iroquois attire, peering from behind the trees of the forest. He is said to have long hair and either a red or black face. He only leaves the confines of the woods when called upon to heal or interpret dreams. He is now referred to as “Old Broken Nose.”
To make a False Face, an Iroquois man walks among the trees of the woods until he feels inspired to carve a particular spirit’s face from a particular tree. The spirit desiring the face carving stirs the soul of the Iroquois man and moves him with what to carve. He carves the representative face mask directly into and on the tree. The mask is only removed from the tree when it is finished. Basswood is the type of tree most often used. If the carving of the mask was begun in the morning, the Iroquois paints the face red. If it is begun in the afternoon, the color of choice for the Iroquois is black.
The masks are given long flowing hair from horses: black, brown, reddish brown, white, or gray. Before European settlers brought horses to Native American lands and introduced them to the Iroquois, the Iroquois used buffalo hair and corn husks to adorn the masks. The eyes are set deep in the face and emphasized with pieces of metal. The noses are always made bent and crooked to honor “Old Broken Nose.” The masks are constructed to carry tobacco pouches on their foreheads to receive payment for services rendered.
At False Face ceremonies, a special language is spoken that only members can understand. The participants dress in worn rags and lean on a staff to represent Grandfather’s “ancient being.” The False Face Society members roam the town, going in and out of every home, looking for illness or disease so they can cure it. They also carry turtle rattles, which goes back to the Iroquois belief that the world we live in is actually resting on a turtle’s back.
False Face Masks are considered sacred by the Iroquois. Through the years, some Iroquois have sold the masks to tourists. The leaders of the Iroquois people, however, issued a strong statement against this practice and called for all masks to be returned to their home origin. Many museums and private collections have returned the False Face Masks to the Iroquois out of respect for their culture. Some are also afraid to own them as they may have special properties which belong only to the Iroquois to use.
The Law of Supply that is talked about in the 11 Forgotten Laws is a spiritual law, or a Universal Law. In trying to practice the Law of Attraction as presented in the Secret, without the realization of the Law of Supply it’s unlikely that most of us will be able to manifest the life we desire.
If you want to make the Law of Attraction work for you, you are going to need to become aware of the Law of Supply.
Ask, and it shall be given you; seek, and ye shall find; knock, and it shall be opened unto you.” Matt. 7:7.
This verse has been used to imply that all we need to do is ask. Actually, according to the 11 Forgotten Laws of the Universe that is true. But it is also true, according to the Law of Thinking, that what we believe in our innermost thoughts is what will show up in our lives. So if we ask, yet believe in a world or lack and scarcity, what do you think is going to happen?
Basically the Law of Supply boils down to the belief in abundance. Bob and Mary teach us specifically how to understand the Law of Supply, and how to implement the Law of Supply in our lives for astounding results.
The first thing that may need changing in our consciousness is the idea that we are not supposed to have abundance. The Law of Supply says the exact opposite. In this lesson of the 11 Forgotten Laws, The Law of Supply is a Truth stating that we were created to evolve, create, accomplish, move forward; in other words to succeed.
We also need to learn that in the Universe of Abundance that we live in, we were all created to have it all. Abundance and prosperity is not something that is reserved for a special few, though it often seems that way.
In order to use and understand the Law of Supply we first need to understand this concept. We are supposed to be happy every day and gratitude is another of the Universal Laws. But the nature of our very being is not to be satisfied. It is our spiritual nature to ever strive for more good, increasing supply and increasing fulfillment for ourselves and the world.
This spiritual law of supply is based on the concept that everything we need is already available to us; it is our inability to recognize the supply that causes the negative beliefs which in turn bring about negative effects.
We’ve all heard people say “I’ll believe it when I see it”. Maybe you’ve said that too. As we begin to study the Law of Supply, we start to recognize that we have it backwards. We are taught we will see it when we believe it.
This all may seem far out, but Bob Proctor and Mary Morrissey use examples to help us easily understand the 11 Forgotten Laws. The 11 Forgotten Laws are here to help you train your mind and use the Law of Supply.
Doctrine of Accord and Satisfaction
Accord and satisfaction is the purchase of the release from an obligation, whether arising under contract or tort by means of any valuable consideration not being the actual performance of the obligation itself. The accord is the agreement by which the obligation is discharged. The satisfaction is the consideration which makes the agreement operative. The consideration may be executory.
Under English law, an accord without satisfaction is of no effect. In Indian law, an accord is an agreement, there must be consensus ad idem; its validity liable to be judged by the general law of contract quite apart from the provisions of sections 62 and 63 of the Indian Contract Act, 1872.
A liability arising out of breach of contract may be discharged by the doctrine of accord and satisfaction. An accord is an agreement made after breach whereby some consideration other than the legal remedy is to be accepted by the party not in fault, followed by the performance of the substituted consideration.
The question is, whether an arbitration clause in a contract survived despite the purported satisfaction of the terms of the contract. Normally, an accord and satisfaction by itself would not affect the arbitration clause for even rights and obligations of the parties are worked out, the contract does not come to an end. If the dispute is that the contract itself does not subsist, the question of invoking the arbitration clause may not arise. But in the event it be held that the contract survives, recourse to the arbitration clause may be taken.
The doctrine of accord and satisfaction has many underlying principles, including the acceptance of a lesser sum and acceptance of any satisfaction. The Privy Council gave its views on the doctrine in Payan Reena Saminathan v. Puna Lana Palaniappa [41 IA 142]. The doctrine and its usage in India have been derived from the American Common Law.
BACKGROUND OF THE DOCTRINE
Section 63 of the Indian Contract Act allows a party to a contract to dispense with the performance of the contract by the other party, or to extend the time of performance or to accept any other satisfaction instead of the performance.
According to Section 62 of the Indian Contract Act, on the other hand, every person who accepts a proposal may dispense with or remit wholly or in part, the performance of the proposal made to him which he has accepted, or may extend the time for such performance or may accept instead of it any satisfaction which he thinks fit.
In accordance with section 62 and section 63 of the Indian Contract Act, 1872, the party who has the right to demand the performance may:
(i) dispense with or remit the performance; or
(ii) extend the time for performance; or
(iii) accept any other satisfaction instead of performance.
The sections 63 and 62 must be construed so as to not overlap with each other. This can be done by holding that agreements referred to in section 62 are agreements which more or less affect the rights of both the parties to the contract discharged by such agreements. Those referred to in section 63 are such as to affect the right of only one of the parties.
The former case necessarily implies consideration, which may be either the mutual renunciation of right, or, in addition to this, the mutual undertaking of fresh obligations, or the renunciation of some right on the one side and the undertaking of some obligation on the other. It is only when the agreement to discharge affects the right of only one party that consideration might be found wanting. There alone the Indian law departs from the English law by making provisions for every such possible case in section 63. The result is that the agreement set up by the defendant which falls under section 63 is binding, though without consideration.
This section enables the defendant in a suit filed by the promise, dispensing or remitting performance or accepting satisfaction and subsequently trying to enforce, the promise made to him, to plead that he was relieved from performance that which the plaintiff told he need not do. It has been held, in the case of New Standard Bank Ltd. v. Probodh Chandra Chakravarty [AIR 1942 Cal 87], that an agreement made between the parties after the breach of contract may be enforced under this section.
Difference from the English Contract Law:
Under the English law, it is competent for both parties to an executor contract by mutual agreement, without any satisfaction, to discharge the obligation of that contract; in other words, reciprocal promises are a sufficient consideration for each other, so are reciprocal discharges. A contract rescinded by an agreement, stands completely discharged and cannot be revived.
But an executed contract cannot be discharged except by release under seal, or by performance of the obligation, as by payment where the obligation is to be performed by payment. Subject to that exception, ‘the new agreement in rescission or alteration of the prior contract must in general satisfy all the requirements of an independent contract’, and so must an agreement to accept satisfaction for a right of action which has arisen by breach of contract.
This section makes a wide departure from the English law, and the principles of that law cannot be relied upon to interpret the section. The intention of the present section to alter the rule of the common law is clear; and this has been recognised in several Indian cases.
Necessity of satisfaction in a contract:
In 1903, the High Court of Bombay had held (Abaji Sitaram Modak v. Trimbak Municipality) that a dispensation or remission under this section involved a promise as defined by section 2(b) or an agreement within section 2(e), so that ‘there must be a proposal of the dispensation or remission which is accepted’: in technical terms, that the effect of the section is only to allow an accord to be good without satisfaction.
Many jurists have continuously protested against this ruling and suggested that the words of the section ought to be construed according to their natural meaning and a promise could discharge the promise not only without consideration but without a new agreement.
Views of the Privy Council:
The principle of accord and satisfaction has been stated by the Privy Council as a principle of substituted agreement thus in the cases of Reena Saminathan v. Puna Lana Palaniappa [41 IA 142] and UOI v. Kishorilal Gupta & Bros [AIR 1959 SC 1362].:
“The ‘receipt’ given by the appellants and accepted by the respondent, and acted upon by both parties proves conclusively that all the parties agreed to a settlement of all their existing disputes by the arrangement formulated in the ‘receipt’. It is a clear example of what used to be well-known in common law pleading as ‘accord and satisfaction by a substituted agreement’. No matter what were their respective rights of the parties inter se they are abandoned in consideration of acceptance by all of a new agreement. The consequence is that when such an accord or satisfaction takes place, the prior rights of the parties are extinguished. They have, in fact, been extinguished by the new rights; and the new agreement becomes a new departure and the rights of all the parties are fully represented by it.”
There have been two interpretations of this doctrine till date, the situation in which the party not at fault accepts any satisfaction in place of the original consideration and most importantly, when he or she accepts a lesser sum as satisfaction until the previous contract is discharged.
ESSENTIAL ELEMENTS OF THE DOCTRINE
The doctrine of accord and satisfaction is merely a method of discharging a claim whereby the parties agree to give and accept something in settlement of the claim and perform the agreement, the accord being the agreement and the satisfaction its execution or performance, and it is a new contract substituted for an old contract which is thereby discharged, or for an obligation or cause of action which is settled, and must have all of the elements of a valid contract.
To constitute an accord and satisfaction, there must have been a genuine dispute that is settled by a meeting of the minds with an intention to compromise. Where there is an actual controversy, an accord and satisfaction may be used to settle it. The controversy may be founded on contract or tort. It can arise from a collision of motor vehicles, a failure to deliver oranges ordered and paid for, or a refusal to finish constructing an office building, etc.
An accord and satisfaction can be made only by persons who have the legal capacity to enter into a contract. A settlement is not binding on an insane person, for example; and an infant may have the right to disaffirm the contract. Therefore, a person, such as a guardian, acting on behalf of a person incapable of contracting for himself or herself may make an accord and satisfaction for the person committed to his or her charge, but the law may require that the guardian’s actions be supervised by a court.
An executor or administrator may bind an estate; a trustee can accept an accord and satisfaction for a trust; and an officer can negotiate a settlement for a corporation.
A third person may give something in satisfaction of a party’s debt. In such a case, an accord and satisfaction is effected if the creditor accepts the offer and the debtor authorizes, participates in, or later agrees to, the transaction.
For example, a widower has an automobile accident but is mentally unable to cope with a lawsuit because his wife has just died. He gratefully accepts the offer of a close family friend to talk to the other driver, who has been threatening a lawsuit. The friend convinces the other driver that both drivers are at fault to some extent. The friend offers to pay the other driver $500 in damages in exchange for a written statement that she will not make any claim against the widower for damages resulting from the accident. The family friend and the other driver each sign a copy of the statement for the other, and when the payment is made, the accord and satisfaction is complete. If the other driver then sues the widower for more money on account of the accident, the widower could show that he agreed to let his friend negotiate an accord and satisfaction, and the court would deny relief.
Most commonly, this is seen in situations where people lack the capacity to consent and negotiate legal agreements, and the person negotiating the contract may be supervised to confirm that the agreement is in the best interests of the person being represented. People can also reach accord and satisfaction on behalf of someone else more informally; for example, a parent may help an adult child settle a debt to a landlord, acting on behalf of the child to resolve the matter. However, the law may require that the guardian’s actions be supervised by a court. An executor or administrator may bind an estate; a trustee can accept an accord and satisfaction for a trust; and an officer can negotiate a settlement for a corporation.
An accord and satisfaction is a contract, and all the essential elements of a contract must be present. The agreement must include a definite offer of settlement and an unconditional acceptance of the offer according to its terms. It must be final and definite, closing the matter it covers and leaving nothing unsettled or open to question. The agreement may call for full payment or some compromise and it need not be based on an earlier agreement of the parties. It does not necessarily have to be in writing unless it comes within the statute of frauds.
Unless there are matters intentionally left outside the accord and satisfaction, it settles the entire controversy between the parties. It extinguishes all the obligations arising out of the underlying contract or tort. Where only one of two or more parties on one side settles, this ordinarily operates to discharge all of them. The reason for this is the rule that there should be only one satisfaction for a single injury or wrong. This rule does not apply where the satisfaction is neither given nor accepted with the intention that it settle the entire matter.
An accord without satisfaction generally means nothing. With a full satisfaction, the accord can be used to defeat any further claims by either party unless it was reached by fraud, duress, or mutual mistake.
A valid accord does not discharge the prior contract, it suspends the right to enforce it in accordance with the terms of the accord contract, in which satisfaction, or performance of the contract will discharge both contracts (the original and the accord). If the creditor breaches the accord, then the debtor will be able to bring up the existence of the accord in order to enjoin any action against him.
The accord agreement must be transacted on a new agreement. It must therefore have the essential terms of a contract, (parties, subject matter, time for performance, and consideration). If there is a breach of the accord there will be no “satisfaction” which will give rise to a breach of accord. In this instance the non-offending party has the right to sue under either the original contract or the accord agreement.
A mere retaining of the money sent by the promisor does not imply satisfaction. Whether or not the money is taken in satisfaction is a question of fact to be determined keeping in view all the circumstances of the case. An award of damages for breach of a contract is not the same thing as a party to the contract accepting satisfaction of the contract other than in accordance with the original terms thereof.
ACCEPTANCE OF ANY SATISFACTION
According to the doctrine of accord and satisfaction, the promise may accept, instead of performance of the promise, such satisfaction as he thinks fit. But until the satisfaction agreed upon remains executory, the original cause of action is not discharged. But where the promise accepts the promise itself in satisfaction, the original cause of action is discharged.
In the case of Manohur Koyal v. Thakur Das Naskar [(1888) ILR 15 Cal 319], the defendant executed a bond of a certain sum of money in favour of the plaintiff, to be repaid on a certain date at eighteen percent per annum. If not paid on that date, the rate would be increased to twenty – four per cent per annum. The defendant came to the plaintiff on the day of repayment and expressed his inability to pay the said amount. Instead, he offered to pay Rs.400 cash and agreed to issue another bond in favour of the plaintiff to be paid at a much later date. The plaintiff accepted theses terms, but the defendant failed to carry them out. The plaintiff filed a suit for recovery of the original balance and the later promised amount from the defendant. The Court applied the principle of accord and satisfaction from section 63 of the Indian Contract Act and entitled the plaintiff to the entire sum demanded by him, stating that the reason was that the plaintiff had accepted the promise to carry out a different set of terms and conditions as the satisfaction for the later contract.
A contract between a debtor and a creditor that the debtor should sell and the creditor should accept any property in satisfaction for the debt, may operate in one of three ways, namely:
(i) the contract by itself may operate as an absolute discharge of the debt, giving the creditor thereafter only the remedy by way of the specific performance of the contract; or
(ii) it may operate only as a conditional discharge of the debt, giving the creditor in case of the debtor’s default, a right to claim either a performance of the contract or if he elects to put an end to it, the payment of the debt; or
(iii) the contract may be an independent transaction, in the sense that it does not affect the rights of the creditors or the obligations of the debtor till the sale is actually completed.
In which of these ways the contract is to have operation will depend upon the intention of the parties to be gathered in the absence of any express stipulation, from their conduct and the surrounding circumstances in the particular case.
It was held in the case of Sakarchand Shamji v. Ismail Hoosein [AIR 1931 Rang 189], that where on the breach of contract for sale, the buyer accepted a promissory note to reimburse loss on breach, and the receipt for one of the payments stated that the whole amount was not paid within a particular time, there was no agreement to revive the original cause of action.
In the case of Ram Swaroop Mam Chand v. Chhaju Ram & Sons. [(1937) 1 Cal 757], the Court held that before a party can be said to accept something other than the performance stipulated for in satisfaction of the contract, it should be open to him to refuse such satisfaction and to insist on the performance of the contract in accordance with its terms.
Thus, if any party instead of original satisfaction of a claim accepted another satisfaction, deemed fit by it, such unilateral acts were covered under section 63 of the Indian Contract Act.
ACCEPTANCE OF A LESSER SUM
Although the rule that the court does not enquire into the adequacy of the consideration is applicable in general, and therefore anything different in kind from what is due may be good satisfaction without regard to its apparent value, yet the court cannot help knowing that nineteen pounds is not equal to twenty pounds. Accordingly, a less sum of money cannot be good for a greater sum already due. This last rule was confirmed with great reluctance by the House of Lords in the case of Foakes v. Beer [[1881 – 85] All ER Rep 106].
However, in Indian law, neither consideration nor an agreement is necessary for enabling a promise to dispense with or remit the performance of the promise or accept any other satisfaction in place of the original satisfaction.
This is one of the most common manifestations of the doctrine of accord and satisfaction. Where there has been a true accord under which the creditor voluntarily agrees to accept a lesser sum in satisfaction and the debtor acts upon that accord by paying the lesser sum and the creditor accepts it, then it is inequitable for the creditor afterwards to insist on the balance.
The real emphasis is not on the acceptance of a smaller sum, but on the debtor’s condition that if the tendered money be at all accepted, it must be in discharge of the entire debt. A creditor accepting payment on a condition cannot accept the payment and repudiate the condition. Such accord and satisfaction are a question of fact, implying an agreement to take the money in satisfaction of the claim in respect of which it is sent; and preclude the creditor promise from claiming the amount under the original contract.
This was seen in the case of State of Maharashtra v. Nav Bharat Builders [(1994) SC 3 SCC 83], where in a mutual agreement pending a suit, a contactor agreed to receive on account of his claim, labour escalation charges, an amount calculated according to specified principles aand in order to withdraw the suit, there was accord and satisfaction after he had accepted the amount and withdrawn the suit.
The same principle was applied in the case of PK Ramaiah v. CMD, National Thermal Power Corpn. [(1994) Supp 3 SCC 126], in which when the creditor accepted the final measurements of the work completed and issued a receipt stating that the amount had been received in full and final settlement, there was accord and satisfaction and the creditor was not entitled to claim the balance.
Once any dispute is settled in this manner, no arbitral dispute remains, and the arbitration clause cannot be invoked.
If a cheque for a smaller amount than the debt due is sent to the creditor in full satisfaction, it does not discharge the debt if the latter does not accept it as such. It depends upon the intention of the parties as expressed in the correspondence and the character of the transaction.
For instance, in the case of Union of India v. Gangaram Bhagwandas [AIR 1977 MP 215], the railway sent a cheque for a smaller sum than the claim of the plaintiff in court in full and final satisfaction as settlement of the claim. The plaintiff encashed the cheque but continued his suit for the balance. The court held that the plaintiff had not accepted the cheque in full and final settlement as he continued the suit.
Similarly, in the case of Tata Locomotive & Eng. Co. Ltd. v. Sardar Kartar Singh [AIR 1961 Pat 37], a cheque for a smaller sum was sent to the creditor with the request that it be accepted in full payment, accompanied by a receipt to be signed by the creditor in full satisfaction. The cheque was cashed but no receipt was sent. On the contrary, before cashing the cheque a demand for the rest was made. The payment was held not to be in discharge of the entire debt.
Further, in respect of a works contract, if a contractor accepts the final bill, it would not mean that he was not entitled to make any claim. He was not precluded in law from raising the rest of his claim. The judgement is clearly right since under section 63 of the Indian Contract Act, there have to be accord as well as satisfaction to discharge the liability of the debtor.
The acceptance of a lesser sum of money where more is due, is a good discharge of the whole liability. The Supreme Court decision in Kapur Chand Godha v. Mir Nawab Himayatali Khan [(1963) 2 SCR 168] illustrates this. In this case, the liability was above twenty-seven lakhs of rupees. A Committee was formed to clear up the matter, which offered the creditor twenty lakhs in full satisfaction of the debt. The plaintiff after some initial protest expressed his readiness to accept the sum sent in full satisfaction of his claim and discharge the promissory note making endorsement of full satisfaction and received the payment. After the settlement, the creditor sued the debtor for the balance amount.
Justice S.K.Das held that “the facts of the case are completely covered by section 63 and illustration (c) thereof. The appellant having accepted the payment in full satisfaction of his claim was not entitled to sue”.
For this principle to lie, there must be proof that the a lesser sum has been accepted by the party not at fault.
FULL SATISFACTION AS THE ACCORD
It is the general rule that full satisfaction equals the accord. That is, after a party not at fault has accepted the satisfaction for an extension in the performance of the previous contract, the accord is complete and the other party cannot back out of the performance of his part of the contract so formed.
This rule has certain exceptions. If the party was made to enter into the contract despite protesting against it, the accord does not hold good. For instance, in the case of Union of India v. Gangaram Bhagwandas [AIR 1977 MP 215], the railway sent a cheque for a smaller sum than the claim of the plaintiff in court in full and final satisfaction as settlement of the claim. The plaintiff encashed the cheque but continued his suit for the balance. The court held that the plaintiff had not accepted the cheque in full and final settlement as he continued the suit and this was clearly a protest against the acceptance of the satisfaction.
Similarly, if the second party gave his assent to the accord under undue influence, mistaken belief or coercion, this rule is not applicable. Also, if the second party entered into the agreement for accord and satisfaction under the pressing circumstances, the doctrine does not apply, as in the case of Usman v. Union of India.
POSITION IN THE AMERICAN COMMON LAW
In the American common law, the term “accord and satisfaction” is used to express “the legal consequence of a creditor’s acceptance of a substitute performance for a previously existing claim or prior original duty.” As the conjunctive name implies, accord and satisfaction consists of two distinct parts. The “accord” of an accord and satisfaction is an agreement in which the creditor promises to accept the substitute performance for the pre-existing claim or duty. The “satisfaction” is the actual acceptance by the creditor of that substitute performance. Used together, these terms represent the legal consequence of accepting performance of the accord as satisfaction, the legal consequence being the discharge of the prior claim or duty.
There are three requirements for a valid discharge of an existing claim or duty by accord and satisfaction:
(1) existence of a claim or duty,
(2) offer and acceptance of a substitute performance in full settlement, and
(3) proper consideration.
The first requirement-existence of a prior claim or duty-is clearly met in the hypothetical. An existing claim or duty is required, because, without it, there is nothing for which to offer a
For the second requirement to be met, the offer and acceptance must be for a substitute performance. In the common law, a substitute performance must be distinguished from a substitute contract. Though the two are very similar, the distinction between them for the purposes of accord and satisfaction is the timeline by which each discharges the prior existing claim or duty. A substitute contract discharges the prior duty at the moment the parties reach an agreement. A substitute performance does not discharge the existing duty until the performance is executed.
The last requirement for a valid accord and satisfaction to exist is that “new, valuable, and legal consideration” be present. Consideration is a bargained for performance or return promise. Therefore, for a promise to give, do, or not do, there must be a quid pro quo, something given, done, or not done in return. In the context of accord and satisfaction, courts have held that “the consideration is the resolution of the disputed claim”.
A COMPARATIVE STUDY
Although the principle of accord and satisfaction has been said to be similar to other forms of dispute settlement and often confused for being synonymous with compromise and settlement and some forms of arbitration, it can clearly be distinguished from them.
Accord and satisfaction is the purchase of the release from an obligation, whether arising under contract or tort by means of any valuable consideration not being the actual performance of the obligation itself. The accord is the agreement by which the obligation is discharged. The satisfaction is the consideration which makes the agreement operative.
An accord and satisfaction can be distinguished from other forms of resolving legal disputes. A payment or performance means that the original obligations were met.
A release is a formal relinquishment of the right to enforce the original obligations and not necessarily a compromise, as in accord and satisfaction.
An arbitration is a settlement of the dispute by some outside person whose determination of an award is voluntarily accepted by the parties.
A composition with creditors is very much like an accord but has elements not required for an accord and satisfaction. It is used only for disputes between a debtor and a certain number of his or her creditors, while an accord and satisfaction can be used to settle any kind of controversy-whether arising from contract or tort-and ordinarily involves only two parties.
Although distinctions have occasionally been drawn between an accord and satisfaction and a compromise and settlement, the two terms are often used interchangeably.
A novation is a kind of accord in which the promise alone, rather than full performance, is satisfaction, and is accepted as a binding resolution of the dispute.
The principle of accord and satisfaction implies that after a breach of contract has been made, the parties may enter into a subsequent contract by which the party not at fault may accept some other consideration other than the legal remedy.
This principle has also been described as only a method of discharge of a contract, as not annihilating the contract itself, but only making the obligation arising out of it unenforceable. The principle of accord and satisfaction is seen as a defense to legal action.
As per Chitty on Contracts,
‘It is a good defense to an action for the breach of any contract that the cause of action has been discharged by accord and satisfaction, that is to say, by an agreement after breach whereby some consideration other than his legal remedy is to be accepted by the party not in fault’.
An accord and satisfaction which secures a release from such an obligation is really based on the existence of the contract instead of treating it as non-existent. When an action is brought for non-performance an accord and satisfaction furnishes good defense. The defense is not that the contract has come to an end, but that its breach has been satisfied by accord and satisfaction, and therefore the plaintiff in the action is not entitled to the usual remedy for the breach.
Through accord and satisfaction, a lessee can agree to acceptance of a lesser amount by way of full satisfaction of all claims. But when the debtor paid still lesser amount, his liability could not come to an end. In such a case, there would be no accord even though the creditor had accepted the said amount.
Birthdays are important to just about everyone. Don’t we all look forward to our birthdays? Somehow, we think that something’s good is bound to happen, and usually there really is.
In the Philippines, the need to relax on your birthday is being taken seriously. In fact, many agencies, both government and non-government alike, allow their employees to go on a birthday leave of absence so they can choose to spend their special day in any manner they want.
Despite it being recognized as important, birthdays are not normally celebrated with much fanfare by Filipinas, unless they are celebrating their milestone years. Grand celebrations are usually made when one reaches the age of 18 and the next big celebration comes at the age of 50. Celebrations for events like these are often done in hotels where guests wear formal dresses or long gowns and are treated to a sumptuous dinner and to-die-for deserts, and a whole night of dancing and fun.
In between those years, birthdays are celebrated more privately, almost insignificantly from the prying eyes of the public. But it does not mean that birthdays are being taken for granted. Not at all.
How Filipina girls celebrate their birthdays depend on several things like budget, mood, and availability of friends. With enough money, the Filipina celebrator might take this as an opportunity to pamper herself. She would go to a spa, to a salon, or she treat herself by shopping till she drops. She would then treat her friends to lunch or dinner, go barhopping or disco-dancing, or out-of-town. There are many beautiful sights in the Philippines, and driving to these places is a better way to celebrate one’s birthday. It gets you closer to nature, which is always a good thing.
On the other hand, if it’s not yet salary time and the Filipina has no extra money to spare, she will have a much simpler celebration. Perhaps, she will hear mass in the morning, go to work and then go home, bringing with her a few servings of the local noodles (locally known as pancit) for her family.
If you happen to have a Filipina girlfriend who happens to love surprises just like many other Filipina women, try to surprise her on her special day. Organize a surprise birthday party for her by coordinating with her best friends and then setting up the venue, the food, and the surprises. If you wish her to spend her birthday with just you, you can set it up that way, too, but of course, while there’s a good chance your Filipina girlfriend will agree to this, keep in mind that she might also want to spend her day with her family. So don’t monopolize her time. If she sees you are concerned that she spends her time with her family, she will be drawn even closer to you.
Regardless of how do Filipina girls celebrate birthdays, there are several things that will not be missing – pancit (or any other kind of noodles) and loved ones.
The importance of the term ‘misrepresentation’ can be inferred from the fact that “free consent” which is inevitable for an agreement to be enforceable under Section 14 of Indian Contract Act, 1872 is rendered negative if misrepresentation is proved. In other words, misrepresentation to any party in a contract so as to induce them for consent renders the contract void.
Section 18 of the Indian Contract Act, 1872 (the “Contract Act”) defines misrepresentation. This section is quoted below:
“Misrepresentation” means and includes –
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.”
With regard to contract, the general principal is that if one party has induced the other to enter into a contract by misrepresentation, though innocently of any material fact specially within his own knowledge, the party misled can avoid the contract. The party who was induced by misrepresentation to enter into a contract, has two remedies open to him; (i) to elect to rescind the contract, or (ii) to seek enforcement of representation and insist upon being placed in the same position as if the contract was performed by claiming damages.”
Under Section 19 of the Contract Act, the right of rescission is available where consent is caused by misrepresentation.
Section 19 of the Contract Act provides for voidability of agreements without free consent. This section is quoted below:
“When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.
A party to a contract, whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.
Exception: If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence.
Explanation: A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practiced, or to whom such misrepresentation was made, does not render a contract voidable.”
A, by a misrepresentation, leads B erroneously to believe that five hundred mounds of indigo are made annually at A’s factory. B examines the accounts of the factory, which show that only four hundred mounds of indigo have been made. After this B buys the factory. The contract is not voidable on account of A’s misrepresentation because of lack of ‘due diligence’.
Section 19A of Indian Contract Act, 1872 states that:-
“When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused. Any such contract may be set aside absolutely or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the Court may seem just”.
A Comparative Study of Correlation Between Misrepresentation and Sale Of Goods
Section 3 of the Sale of Goods Act states that:
“The unrepealed provisions of the Contract Act save in so far as they are inconsistent with the express provisions of the Sale of Goods Act, shall continue to apply to contracts for the sale of goods”.
Section 12 of the Sale of Goods Act, 1930 provides the difference between ‘condition’ and ‘warranty’ and read as follows:-
“12. Condition and warranty, – (1) A stipulation in a contract of sale with reference to goods which are the subject thereof may be a condition or a warranty.
(2) 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.
(3) 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.
(4) 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”.
Further, Section 13 of the Sale of Goods Act, 1930 provides when ‘condition’ to be treated as `warranty’, relevant part of sub-section (1) & (2) thereof reads as under:-
“13. When condition to be treated as warranty. – (1) 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.
(2) 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 rejecting the goods and treating the contract as repudiated, unless there is a term of the contract, express or implied, to that effect.”
Distinction Between Misrepresentation and Fraud: Clearing the Imbroglio
Definition of Fraud as per Indian Contract Act, 1872:
Section 17:- “Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:
(1) the suggestion, as a fact, of that which is not true by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
Explanation: Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.
(a) A sells, by auction, to B, a horse which A knows to be unsound. A says nothing to B about the horse’s unsoundness. This is not fraud in A.
As we can infer from the Indian Contract Act, misrepresentation is an innocent act of deceit whereas fraud inevitably includes the intention to deceive. As the deception is deliberate, the contract becomes void after fraud is proved whereas in case of misrepresentation the contract is voidable at the option of the party deceived. However, both are forms of undue influence as per Section 16 of Indian Contract Act.
Bellachi (Dead) by LR Vs. Pakeeran JT 2009(4) SC 298
Subject matter of the suit was a deed of sale dated 7th October, 1999 executed by the petitioner in favour of the respondent. The amount of consideration was shown therein to be a sum of Rs. 20,000/.Contention of the appellant in the said suit was that the said deed of sale is vitiated by misrepresentation, undue influence, fraud and collusion as she was made to believe that she would obtain financial assistance by executing the said document. According to her, she had reposed complete faith and trust in her brother who used to visit her place often. The law does not envisage raising of a presumption in favour of undue influence. A party alleging the same must prove the same subject of course to just exceptions. Hence, the plaint was dismissed.
State of Karnataka and Anr. Vs. All India Manufaturers Organization and Ors. AIR 2006 SC 1846
State of Karnataka decided to take up “Bangalore-Mysore Infrastructure Corridor Project” with a consortium. For the very same, Memorandum of understanding (MOU) was entered into between the petitioner and a consortium of companies.Government order (GO) was also passed. Members of consortium entered into an agreement for assigning their respective rights under the GO and MOU in favour of Nandi Infrastructure Corridor Enterprises Ltd. Nandi submitted a framework agreement (FWA) which was approved by the petitioner.One of the key obligations of petitioner under FWA was to make land available.Karnataka Industrial Areas Development Board entered into an agreement with Nandi for acquisition of private land. Henceforth, notifications were issued.FWA was challenged in public interest writ petition. The petitioner took the plea that they had given their consent due to misrepresentation by Nandi. The inference drawn by the High Court was that the plea of fraud and misrepresentation sought to be raised was not only an afterthought but also false to the knowledge of the State Government. The High Court, therefore, observed (vide Paragraph 27): “It is unfortunate that the petitioners and the State Government have chosen to raise this bogie (sic- bogey) to defeat the public project subserving public interest. On appeal, Supreme Court upheld the view of High Court regarding the plea of misrepresentation.
Union of India and Ors. Vs. R.P. Yadav AIR 2000 SC 2252
A contract had been entered between Indian navy and artificial apprentice. The question dealt with was whether artificer apprentice of Indian Navy who had been given re-engagement for certain period after obtaining his consent for it entitled to withdraw consent and demand his release from force as of right. It is the case of respondant in his writ petition that he agreed to be reengaged was based on the misrepresentation on the part of the appellants to him that he had only completed 11 years of pensionable service and that he required another four years to earn the pension. As such, it was contended he had a right to rescind the contract under Section 19 of the Contract Act. The appellants by sending Raj Kumar the “Expiry of Engagement Serial” expressly represented to him that he had put in only 11 years of pensionable service and that he should apply for extension for four years to qualify for pension. Therefore, the court held that the consent of artificial apprentice was obtained through misrepresentation.
Sri Tarsem Singh Vs. Sukhminder Singh AIR 1998 SC 1400
Parties entered into a contract for sale of certain land and certain amount was paid to petitioner as earnest money. Suit for specific performance filed when petitioner did not execute sale deed and decreed by Trial Court. In appeal Additional District Judge observed that both parties suffered from mistake of fact as to area of land and sale. Consideration was already paid by the respondent. Decree for specific performance was not passed but decree for refund of earnest money was passed which was confirmed by High Court and Supreme Court. The Supreme Court upheld that the respondent was subjected to misrepresentation by the petitioner as the latter made a false promise to sell the disputed property.
M/s. Arosan Enetrprises Ltd. Vs. Union of India & Anr. AIR 1999 SC 3804
The factual score depicts that on 24th October, 1989, the appellant furnished a performance bank guarantee for $ 29,28,000 and upon bank guarantee being furnished, the Government of India assigned the contract to the Food Corporation of India (FCI) under Clause 20 of the Agreement. FCI also in its turn opened a Letter of Credit for the full value of the contract though, however, as the records depict that while on 26th October, 1989, the Letter of Credit was opened by FCI but its authentication was not effected within the delivery date i.e. 31st October, 1989. Point to be noted is that the Bank, can not, by merely stating that there was non-supply of goods by the appellant, use the words “fraud or misrepresentation” for purposes of coming under the exception. The dispute as to non-supply of goods was a matter between the seller and buyer and did not, as stated in the above decision, provide any cause of action for the Bank against the seller.