Learning the Law
Is there any difference between casual conversation and a contract?
To understand the basic principles of contract, illustrations on casual conversation are often used as an aid. But how valid are these illustrations? Do they stand the test of law?
A casual promise to treat or meet or follow an instruction, abound in our daily lives. But ever wondered can one be held liable to honour (perform) these promises in law. These casual conversations contain the same elements as are the necessary constituents of a contract: a valid offer and its acceptance, the promise(s) on such accepted offer and the consideration(s) which flows, consensus-ad-idem, legality of the agreement. So how often have you not performed your promise as mandated under section-37 of the Indian Contracts Act, 1872?
If casual conversations were to mirror a binding contract, making conversation would become susceptible to litigations and the registered advocate may be able to create monopoly in ‘conversations’. While this sounds exhilarating for aspirants and registered advocates the law plays a spoiler.
Casual conversation may be distinguished from a binding contract in the following ways:
Firstly, the ambiguity in a casual conversation may add value to the conversation. Say, the work of Shakespeare or any poet. The ambiguity in the piece flavours the literary work. The auditor may conclude to take varying interpretations of the ambiguous piece as reasonable. However, the liberty to conclude on the reasonableness of varying interpretations is not afforded to a contract. The entrusted judicial institution has to determine and arrive at any one particular interpretation to be reasonable and enforceable.
Secondly, casual conversations mark themselves on the unique personality of the orator and the contextual circumstance of his/her conversation. On the other hand, in a contract there is no person in flesh and blood uttering the words; the same has to be taken in context of the circumstances with which a third party shall appraise itself, often, in complete tangent to the context predicted or anticipated by the contracting parties. In a casual conversation there develops a relationship between the orator and the auditor creating a mutual expectation of co-operation. A minimal expectation of a reaction if not the desired conversation. However, a contract is designed to communicate mutually expected compromises between rival submissions and a part of the conversation ensues when the co-operation breaks down.
Thirdly, the orator in a casual conversation has the advantage to select the tone and words to achieve the desired effect. The method of expression and body language are useful aids as well. However, the clauses in a contract are formally worded with standard terms and no external evidence of the tone of the conversation and body language of the contracting parties is inferred to add context to the contract.
Lastly, casual conversation are mostly descriptive. There may not be objectives which need to be cast in a yes or no. However, a contract essentially contains promis(es) which bring upon themselves the liability of being performed.
Therefore, much to the dismay of advocates and to be advocates there cannot be any monopoly on casual conversation. Expect to gain from formal representations only.
Read Full Post | Make a Comment ( None so far )How to answer the first internal assessment paper?
The above query has been a constant concern amongst students. It is spread across batches. Before we conclude on the pointers it may be interesting to aggregate the reasons for such concern.
Some of the popular concerns are:
1. Time management
2. Length of answers
3. Structure of an answer
4. Synchronising the content with the taste of the faculty concerned
5. Quality of content
How can one come around these concerns and pen down a satisfactory answer?
There are no standard formulas but the following pointers may come handy.
1.Time management
Under the new system, the duration of the first assessment has been reduced to one hour. There is not much room to strategise and organise once the hour commences. It becomes a race against the seconds arm in the clock. It is imperative to strategise and organise in advance. But how does one do that prior to knowledge of the exact question in the question paper? Assess your writing speed. How much time does it take for you to write a page? Say it takes me 4 minutes. How much time can I afford to visualise the structure of my answer? If I keep a minute aside to visualise the structure of the answer that takes 5 minutes in all (provided its a 5 question paper). One major advantage in visualising the structure before hand is that it takes little time to revise the answer sheet when complete. So lets keep aside a minute for each answer to be revised when complete. So after reducing the ‘visualising time’ and ‘revising time’ one is left with 50 minutes. That allows me 10 minutes an answer. Considering my reading speed is 4 min per page I can afford to write 2&1/2 sheets per answer or if its 5 min per page that makes it 2 pages per answer. It is very important to value the minute for ‘visualising the structure’ and ‘revising’. If one does not compromise on this one can afford complete concentration on the content and length of the answer in the 10 minutes you have for the particular question. This ways one will never over write an answer and end up with an incomplete answer sheet. The best strategy is to answer as many questions as the question paper allows you rather than pack a few answers with top quality at the cost of missing some answers. Plan pit stops. For eg- on the 11th minute answer-1 should get over, 22nd minute answer two, … and on the 55th minute answer five. You will be in complete control for the entire hour and it makes the process of answering the paper for that one hour lot of fun.
2. Length of answers
This has plagued students all along. First of all, you cannot write beyond your writing speed. So assess that (same process as explained above). Never overestimate yourself. A good evaluator is not influenced by the number of pages you expend your ink on, however, a good evaluator is a rarity. Therefore, the best approach is to write as many pages subject to your writing speed. Here I would like to give a caveat, always plan for some cushion time as well. But in your endeavour to elongate the length of your answer do not make it tautological or unnecessarily leave spaces and increase the size of the letters. You loose credibility with the evaluator. Long answers must be well structured and appear neat.
3. Structure of an answer
It shall be foolish to incarcerate pointers in set generalisations. Structure your answer logically and there must be a reasonable rationale to such logic. I can share the general structure employed by me during my time at the law school.
[a] Every answer would begin from a fresh page. This would ensure the evaluator will never miss marking a particular answer. However, do not end answers on the top three-four lines of a fresh page and jump to the next answer every time. It becomes prima facie evident you are doing that to increase the total number of pages in the answer sheet. Do not do this and run the risk of loosing credibility with the evaluator.
[b] Have a mandatory ‘intro’ and ‘conclusion’ paragraph. To distinguish these paras from the rest leave a gap of no more than one line after the ‘intro’ para and before the ‘conclusion’ para. The best approach is to summarise the structure of your answer and the ultimate conclusion in the ‘intro’ para. However, this requires sound knowledge of the answer. Try to have your ‘intro’ as near to this as possible. The conclusion must contain your specific comments on the subject of the question. However, at all times avoid being dramatic and keep it simple, short and precise.
[c] Every heading and subheading in the answer must be given a separate paragraph. If there is a heading do not take an inch of space from the left margin to commence the answer. You could commence where the line commences. To distinguish subheadings leave a gap of one inch from the left margin. Do not feel shy in breaking into fresh paragraphs but avoid one-three line paragraphs and many small paragraphs.
[d] There are no rules regarding using numbers while bulleting points. However, avoid bullets in the nature of ticks and dots. Always number them. Either as, (i), (1), (a) or ‘firstly’. Personally I made a transition from numbers to ‘firstly’, ‘secondly’. I found it to be more appropriate and maintained the flow of the narrative.
[e] Do not litter your answer with case laws. Carefully sift the landmark precedent from the regular ones. Always cite the landmark precedents. If you are citing a case which is not a landmark precedent justify the necessity to cite such a case. It is beneficial to make up the body of your answer with concepts and often credit it to case laws where the concept was discussed and laid down. Do not fraud. The presumption is, if you have not heard of a case name it must not exist.
[f] Avoid citing commentaries and articles unless such commentary is a known authority on the subject or the article is universally popular. Whenever you cite anything you have to justify the source. It is difficult to give exact citations to the material you credit to a book.
[g] There are many more specific details. I am sure you shall develop your own customised ones.
4. Synchronising the content according to the taste of the faculty concerned
There is only one way to find out. Ask them.
5. Quality of content
In GGSIPU Law there is no guarantee, or I should put it this ways, there is little correlation between the quality of the content and the marks you shall score. But this may not be true with internal assessments. If your answer stands out it scores. If it is abysmal you score accordingly. But let personal satisfaction be the primary motivation to write a good quality answer. It is sustaining.
[Note: The list is not exhaustive and we could discuss the concerns on this forum if not contained in this article.]
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