Question 5 (a)

Short notes: agency by ratification; surety as a favoured debtor; supervening impossibility

9 marks

Time to write
About 18 minutes

From an older CBCS paper

Question

Question 5 (a) · 9 marks

Write a short note on each of these:

  1. Agency created by ratification

  2. The surety as a favored debtor

  3. The doctrine of supervening impossibility.

Reworded from the university paper; the task is the same. The original paper belongs to the University of Delhi. See DU's question bank.

Before you write

Read off the question and its marks

18 minfor 9 marks

Read from the question

  • (i)–(iii)3 items, each marked on its own: give each its share.
  • short noteA note opens with the meaning, then two or three key points. No long introduction.

Write it in this order

The parts stand alone: start with the one you are surest of.

  1. Read; underline the asks; jot your points 1 min
  2. 1 (i) Agency by ratification 3 marks 5 min
  3. 2 (ii) Surety as a favoured debtor 3 marks 5 min
  4. 3 (iii) Supervening impossibility 3 marks 5 min
  5. Check: every ask answered, key terms underlined 2 min

Short on time? A few lines on every part beat a full answer to one: each part is capped at its own marks.

Try it first. About 18 minutes for 9 marks. Write it out, then open the solution.

Solution

Hover or tap a marked figure, like 72,000, to see how it is made and where else it appears.

(i) Agency by ratification. Someone may act in another's name without that person's knowledge or authority. The person named can then adopt the act or reject it; if he adopts it, it binds him as if he had authorised it in advance, and the adoption reaches back to the date of the act (ss. 196–200). For a valid ratification the act must have been done on behalf of the person ratifying; he must ratify with full knowledge of the facts, take the whole transaction, act within a reasonable time and communicate it, and cannot by ratifying harm a third person's intervening rights. He must also be someone who could have appointed an agent, of full age and sound mind (s. 183), and the act must be one he could lawfully have authorised: a void or illegal act cannot be ratified.

Picture itShort notes: agency by ratification; surety as a favoured debtor; supervening impossibility

1Meera and Arjun book Sharma ji's hall for their wedding—the agreement is signed.

Possible to performThe contract was possible to perform when made.

2Days before the function, a fire guts the hall. Nobody is at fault.

Unexpected eventAn unexpected event or a change of circumstances beyond the parties' contemplation later makes performance impossible or unlawful.

3They tear up the agreement together: neither side owes the other anything now.

Section 56The contract becomes void, and the parties are discharged from further performance.

(ii) Surety as a favoured debtor. The surety takes on another person's debt for no benefit of his own, so the law guards him: on particular grounds it discharges him, wholly or for the future:

  • Variance (s. 133): a change in the terms agreed between the creditor and the principal debtor, made without the surety's consent, discharges him as to transactions after the change.
  • Release of the principal debtor (s. 134): the surety is discharged if the creditor releases the principal debtor by a new contract, or by any act or omission whose legal result is the principal debtor's discharge.
  • Revocation of a continuing guarantee: the surety may revoke it at any time by notice to the creditor, as to future transactions (s. 130); and, unless the contract provides otherwise, his death revokes it as to transactions after his death, his estate staying liable for earlier ones (s. 131).
  • Novation (s. 62): a fresh contract that replaces the principal one discharges him.

(iii) Doctrine of supervening impossibility. A contract to do an act that later becomes impossible, or unlawful because of an event the promisor could not prevent, becomes void when the act becomes impossible or unlawful, and the parties are discharged. It arises from destruction of the subject matter, death or incapacity in a contract of a personal nature, and subsequent illegality, such as a change in the law. Mere difficulty or expense does not discharge the contract.

Where the 9 marks sit

#ComponentMarks
1(i) Agency by ratification3
2(ii) Surety as a favoured debtor3
3(iii) Supervening impossibility3
Total9
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