Memorial Moot Respondent

T

ACADEMIC MOOT COURT COMPETITION - II, 2015

IN THE HON’BLE COURT OF CIVIL JUDGE

AT

..........

MR. AJAY (MINOR, AGE 12 YEARS)

THROUGH MR. RAJAN, NATURAL GUARDIAN

…PETITIONER

V.

RELICOP PHARMACEUTICAL CO. LTD.

…RESPONDENT

MEMORIAL FOR THE RESPONDENT

THE TABLE OF CONTENTS

The Table of Contents..............................................................................................................2

The Index of Authorities......................................................................................................... I

list of abbreviations................................................................................................................ II

The Statement of Jurisdiction............................................................................................. IV

The Statement of Issues......................................................................................................V

The Summary of Arguments...............................................................................................VI

The Arguments Advanced....................................................................................................1

A. That the petitioner, Mr. Ajay is not competent to contract.......................................1

That Mr. Ajay is a minor................................................................................................1

Minor’s Competence to Contract..................................................................................2

B. That no quasi-contractual relation has been created between the petitioner, Mr. Ajay and the respondent, relicop Pharmaceuticals Co. Ltd..................................3

C. That Doctor Gupta was not aware of terms and conditions prescribed in the advertisement.....................................................................................................................4

Act done in ignorance of proposal...............................................................................5

No condition was fulfilled to constitute a contact under section 8, Indian Contract Act, 1872......................................................................................................................... 7

D. That Mr. Rajan did not enter into a contract on behalf of Ajay...............................8

Extent of power of guardian to enter into contract on behalf of a minor.................8

Natural Guardian of Hindu minor.................................................................................8

Contract of Necessity.....................................................................................................9

If minor has reaped any Benefit.................................................................................10

Agreement in sub-silentio............................................................................................10

E. That proposal was not accepted and parties did not enter into a valid contract..............................................................................................................................10

That a general offer was made by the respondent..................................................11

No acceptance made by the Petitioner.....................................................................11

The Prayer...........................................................................................................................13

THE INDEX OF AUTHORITIES

STATUTORY COMPILATIONS

1. THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956.

2. THE INDIAN CONTRACT ACT, 1872.

3. THE INDIAN MAJORITY ACT, 1875.

DICTIONARIES

1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (8th eD. 2001).

2. P. RAMANATHA AIYER, THE LAW LEXICON (2ND ED. 2004).

3. OXFORD ENGLISH DICTIONARY, (2nd ed. 2009).

4. WEBSTER’S NEW INTERNATIONAL DICTIONARY (1926).

WEBSITES

1. www.judis.nic.in.

2. www.manupatra.com.

3. www.supremecourtcaselaw.com.

BOOKS

1. Aiyer, Ramanatha, P., The Law Lexicon, 2nd ed. New Delhi: Wadhwa and

Company (2004).

2. H.R. Saharay, Dutt on Contract, 9th Edition, 2000, Wastern Law House, New

Delhi.

3. Mallick, Indian Contract Act, 2008, Kamal Law House, Kolkata.

4. Sanjiva Row’s Commentary on The Indian Contract Act, 1872 and Tenders,

2004, Delhi Law House, Delhi.

5. T.R. Desai, Law relating to Tenders and Government Contracts, 2nd Edition,

2009, Universal Law Publications, New Delhi.

TABLE OF CASES

Bloom v. America Swiss Watch Co (1915) App. Div. 100…….……………….04

Carlill v. Carbolic Smoke Ball Co., (1893) 1 Q.B. 256 at 268…………………08

MEMORIAL FOR THE RESPONDENT PAGE I

Hari v. Sew AIR 1949 Assam 57…………..…………………………………….07

Kashiba v. Shripat (1894) 19 Bom 697………………………………….……...01

Kedar Das Mohta v. Nand Lal Poddar AIR 1971 Pat 253 p. 255-256.……...08

Lalman Shukla v. Gauri Dutt, (1913) 11 All.L.J. 489………………………….05

Latcharao v. Viswanadham , AIR 1956 AP………………………………….....02

Peters v. Flemings (1840) 6 M&W 42………………………..………………….07

Peters v. Flemings (1840) 6 M&W, 42………………………..…………………03

R. V. Clerk, (1927) 40 CLR……………………………………………………….04

Rajubala Dasi v. Nidhurama Pandit AIR 1960 Cal 65………...……………....02

Rajubala Desi v. Nidhurama Pandit AIR 1960 Cal 65………………………….07

Ritesh Aggarwal v. SEBI, (2008), 8 SCC 205…….....………………………….03

Williams v. Carwardine (1833) 4 B. & Ad. 621……………………......……….05

LIST OF ABBREVIATIONS

AIR All India Reporter

Ed. Edition

Hon'ble Honourable

Ors Others

p. Page No.

PLJR Patna Law Journal Reports

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

Sec. Section

v./vs. Versus

& And

MEMORIAL FOR THE RESPONDENT PAGE II

THE STATEMENT OF FACTS

1. A reward of INR 15000 was announced by Relicop Pharmaceutical Co.

Ltd. in advertisement in Tribune dated 15th June, 2015 to anyone who

contracts H1N1 flu after having their pills as per directions printed on the

box.

2. Mr. Rajan saw the advertisement and believed the accuracy of statement

made. His son, having fever, took those pills as per the prescription of their

family doctor, Dr. Gupta, who was unaware of the advertisement.

3. Despite this, Ajay contracted H1N1 flu on 27th July 2015.

4. Mr. Rajan, on behalf of his son claimed INR 15000 from the Company, as

promised by them in advertisement.

5. The Company denied the amount saying that there was never a contract

between Mr. Ajay and the Company.

MEMORIAL FOR THE RESPONDENT PAGE III

THE STATEMENT OF JURISDICTION

The Council on behalf of the Respondent, hereby submits his written statement in

the suit for recovery. The Council most humbly and respectfully, submits that this

Hon’ble Court has the requisite subject matter jurisdiction to entertain and adjudicate

this matter.

MEMORIAL FOR THE RESPONDENT PAGE IV

THE STATEMENT OF ISSUES

A. That Mr. Ajay is not competent to contract.

B. That no quasi-contractual relation has been created between Mr. Ajay and

Relicop Pharmaceuticals Co. Ltd.

C. That Doctor Gupta was not aware of terms and conditions prescribed in the

advertisement.

D. That Mr. Rajan did not enter into a contract on behalf of Ajay

E. That proposal was not accepted and parties did not enter into a valid contract.

MEMORIAL FOR THE RESPONDENT PAGE V

THE SUMMARY OF ARGUMENTS

A. That the petitioner Mr. Ajay is not competent to contract.

The council on behalf of the respondent most humbly and respectfully submits

before this hon’ble court that Mr. Ajay, 12 years old is a minor and thus, not

competent to contract as per the provisions of section 10, 11 of the Indian Contract

Act, 1872. Thus, a contract entered by him is void ab initio and he is not entitled to

any benefit from such contract.

B. That no quasi-contractual relation has been created between the

petitioner Mr. Ajay and the respondent Relicop Pharmaceuticals Co.

Ltd.


before this hon’ble court that for a quasi contractual relation to be established, some

necessities have to be supplied by a person to a minor. In such a case, such person

can obtain repayment only from the property of such minor. However, in the instant

case, the minor is alleging to have entered into a contract with the respondent

Company and is demanding the Company to pay him INR 15000 as per the

agreement. Thus, the council on behalf of the respondent most humbly submits that

no quasi contract has been created between the petitioner and the respondent

company.

C. That Doctor Gupta was not aware of terms and conditions prescribed

in the advertisement.


before this hon’ble court that the doctor was ignorant of the terms and conditions

prescribed in the advertisement by the respondent company. Mere performance of

the conditions in absence of knowledge of the offer is not considered as an act in

exchange of the offer. Thus, provisions of section 8 of the Indian Contract Act, 1872

MEMORIAL FOR THE RESPONDENT PAGE VI

were not fulfilled. Hence, no contract was entered between the petitioner and the

respondent.

D. That Mr. Rajan did not enter into a contract on behalf of Ajay.


before this hon’ble court that a guardian can enter into a contract on behalf of a

minor provided the minor reaps out some benefit from such contact or in order to

supply the minor with necessities suited to his condition in life. Further, Mr. Rajan

was merely aware of the general offer. He did not show any positive conduct in order

to communicate his acceptance towards the offer. Thus, he did not enter into a

contract with the respondent company on behalf of his minor son.

E. That proposal was not accepted and parties did not enter into a valid

contract.


before this hon’ble court that a general offer was made by the respondent company

to the world at large. The same could be accepted either expressly or impliedly by

performing any of the conditions thereof. However, no acceptance was made by the

petitioner as he did not consume the pills as per the directions laid down by the

respondent company. Rather, the pills were consumed as per the directions of Dr.

Gupta, their family doctor. Hence, the council on behalf of the respondent most

humbly submits that the proposal was never accepted and thus, the parties never

entered into a contract.

MEMORIAL FOR THE RESPONDENT PAGE VII

THE ARGUMENTS ADVANCED

A. THAT THE PETITIONER, MR. AJAY IS NOT COMPETENT TO CONTRACT.

The council on behalf of the Respondent most humbly submits before this

Honourable Court that Mr. Ajay is not competent to contract as per the provisions of

the Indian Contract Act, 1872. For an agreement to be a contract, provisions of

section 10, Indian Contract act, 18721, must be fulfilled.

For an agreement to be a contract:

- Parties should be competent to contract

- There must be free consent of parties

- There should be lawful consideration

- There should be lawful object

- It should not be expressly declared to be void

Arguendo, the council on behalf of the Respondent must humbly submits before this

hon’ble court that as Mr. Ajay is a minor, he has not consented to any contract and

the agreement is not for to supply necessities to the minor, thus it is not a valid

contract.

THAT MR. AJAY IS A MINOR.


before this hon’ble court that Mr. Ajay, being of the age of 12 years, is a minor and

thus not competent to contract under the Indian Contract act, 1872.

DETERMINING MAJORITY

Age of majority, according to section 11, Indian Contract Act, 18722 shall be

determined according to law to which the person is subject. Therefore, if there is a

1 ‘When agreements are contracts:All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or in presence of witnesses, or any law relating to the registration of documents.’

2 ‘Who are competent to contract –Every person is competent to contract who is of age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified form contracting by any law to which he is subject.’

MEMORIAL FOR THE PETITIONERS PAGE 1

difference between provisions of Indian Majority Act, 1875 and those of personal law

to which the person is subject, his personal law will prevail and over-ride those of

Indian Majority Act, 1875.3

In the case of Kashiba v. Shripat4 the honourable court dealt with the case of a 16

year old Hindu widow. It was held that “her capacity to contract shall be regulated by

Indian Contract Act, 1872 being the law of her domicile and she being a minor was

not liable under the bond.”5

AGE OF MAJORITY UNDER THE INDIAN MAJORITY ACT, 1875.

A person who has not attained the age of majority is a minor. Section 3 of the Indian

majority Act, 18756 provides that a person is deemed to have attained the age of

majority when he completes the age of 18 years.

Thus, the council on behalf of the respondent most humbly and respectfully presents

before this hon’ble court that as Mr. Ajay is of 12 years, he is a minor and thus

incompetent to contract under the Indian Contract Act, 1872.

MINOR’S COMPETENCE TO CONTRACT


before this hon’ble court that a minor is incompetent to enter into a contact and any

contact entered by him is void-ab-initio.7

In the case of Latcharao v. Viswanadham8 it was held by the hon’ble court that, “as

a minor cannot enter into a contract, contract with minor is void ab inotio.”

In the case of Rajubala Dasi v. Nidhurama Pandit9, it was held by the hon’ble court

that, “a contract is specifically enforceable against a minor if he has reaped any

3 H.R. Saharay, Dutt on Contract, p. 231.4 (1894) 19 Bom 6975 Sanjiva Row’s Commentary on The Indian Contract Act, p. 649.6 Section 3 in The Majority Act, 1875‘ Age of majority of persons domiciled in India —

1) Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before.

2) In computing the age of any person, the day on which he was born is to be included as a whole day and he shall be deemed to have attained majority at the beginning of the eighteenth anniversary of that day.’

7 Mallick, Indian Contract Act, p. 411.8 AIR 1956 AP.9 AIR 1960 Cal 65.


benefit under the contract. Even though a minor cannot enter into a contract, yet,

guardian of a minor can validly enter into contract on his behalf.”10

In the case of Ritesh Aggarwal v. SEBI11 it was held by the hon’ble court that, “a

contract must be entered into by a person who can make a promise or make an

offer. Else, the contract will be void as an agreement which is not enforceable under

law is void. Thus, minors cannot enter into a contract.”12

For a contract to be valid, parties to contract must have a free consent. Consent is

defined under section 13 of Indian Contract Act, 187213 as agreement between two

or more people upon the same thing in the same sense. Mutual consent is essential

for every agreement and agreement is generally essential for formation of contract.

Therefore, no binding contract can be formed if there is no consensus ad idem.

Thus, it is most humbly submitted before this hon’ble court that as a minor is not

competent to give a valid consent, hence contract with Mr. Ajay is void as it does not

fulfil the conditions specified under section 10 and 13 of the Indian Contract Ac,

1872.

B. THAT NO QUASI-CONTRACTUAL RELATION HAS BEEN CREATED

BETWEEN THE PETITIONER, MR. AJAY AND THE RESPONDENT, RELICOP

PHARMACEUTICALS CO. LTD.


before this hon’ble court that Relicop Pharmaceutical Co. Ltd has not supplied any

necessities suited to his condition in life to Mr. Ajay. Thus, no quasi contractual

obligation of the nature specified under Section 68, Indian Contract Act, 1872 has

been created.

Under the Indian Law, the principle of indeditatus assumpsit or quasi contracts has

been incorporated to a limited extent under section 68 of the Indian Contract Act,

187214.

10 T.R. Desai, Law relating to Tenders and Government Contracts, p. 136.11 (2008) 8 SCC 205.12 Supra 5.13 Section 13, Indian contract Act, 1872:‘Consent’ defined –

Two or more people are said to consent when they agree upon the same thing in the same sense.’14 ‘Claim of necessaries supplied to person incapable of contracting, or on his account –


In the case of Peters v. Flemings15 it was held that, “quasi contracts apply only in

cases where necessities are supplied to a minor. Necessities refer to things fit and

proper to the minor.”16

NECESSITIES SUITED TO HIS CONDITION IN LIFE:

The provisions of section 68, Indian Contract Act, 187217, apply in cases where some

benefits have been provided by someone to a person incapable to enter into a

contract. In such cases, expenses of the same can be reimbursed by such person

only form the property of such incapable person. However, in the instant case, no

benefits have been provided by the Company to Mr. Ajay and there is no dispute

regarding reimbursement of its expenses. Instead, Mr. Ajay is alleging to have

entered into a contract with the Company and is claiming INR 15000 as per the

agreement.

Hence, the council on the behalf of the respondent most humbly and respectfully

submits before this hon’ble court that no quasi-contractual relationship has been

created between the minor, Mr. Ajay and Relicop Pharmaceuticals Co. Ltd.

C. THAT DOCTOR GUPTA WAS NOT AWARE OF TERMS AND CONDITIONS

PRESCRIBED IN THE ADVERTISEMENT.


before this hon’ble court that Dr. Gupta was neither aware of the advertisement

published in the Tribune newspaper by Relicop Pharmaceutical Co. Ltd. Now was he

aware of the terms and conditions thereof.

An offer can be accepted by:

- giving a notice of acceptance, or

- by performing conditions of proposal, or

If a person, incapable of entering into a contract, or anyone whom he is legally bound to support, is supplied by another person with necessities suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person.’

15 (1840) 6 M&W, 42.16 Supra 4.17 ‘Claim of necessaries supplied to person incapable of contracting, or on his account –



- By acceptance of any consideration for a reciprocal promise which may be

offered with a proposal.

Accepting by performing of conditions, or by receiving consideration, is covered

under Section 8 of the Indian Contract Act, 187218. This section recognises the fact

that in the cases in which the proposer invites acceptance by doing of an act “it is

sometimes impossible for the offeree to express his attention otherwise than by

performance of his part of the contract.19

ACT DONE IN IGNORANCE OF PROPOSAL

A general offer open to the whole world is capable of being accepted by any person

who fulfils the conditions or who substantially performs them. But, an act done by a

person in ignorance of the offer will not amount to performance of the condition of

the proposal within the meaning of section 8 of the Indian Contract Act, 1872.

An offer to be valid must be communicated.20 Further, a person cannot be said to

have made an offer unless it comes to the knowledge of the offeree. An offeree

cannot be said to have accepted the offer, even if he acts according to the terms of

the offer. Thus, acting in ignorance of offer does not amount to acceptance of offer.21

MERE PERFORMANCE OF CONDITIONS

If any act or services are performed so that the terms of an offer to pay for them are

infact satisfied, but the performer is not aware that the offer has been made, the

question would arise as to whether he can claim payment after he becomes aware of

the offer.22

In the case of Bloom v. America Swiss Watch Co.23 It was held by the honourable

court that, “a person who gives information for which a reward has been offered

cannot claim reward unless he knew of the offer at the time of giving information.”24

18 Section 8, Indian Contract Act, 1872‘ Accepting by performing of conditions, or by receiving consideration-

Performance of conditions of proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal.’

19 Anson’s Law of Contract, 20th ed., p.35.20 Section 4, Indian Contract Act, 1872.21 Sanjiva Row’s Commentary on The Indian Contract Act, p.476.22 Mallick, Indian Contract Act, p. 411.23 (1915) App. Div. 100.24 T.R. Desai, Law relating to Tenders and Government Contracts, p. 136.


ACT NOT IN EXCHANGE OF OFFER

In the case of Australian Case of R. V. Clerk,25 a reward had been offered for

anyone who gives information leading to arrest and conviction of murderers of two

police officers. The clerk who knew the information was himself suspended of crime.

He gave the information leading to conviction of culprits. He admitted that he gave

information to clear himself of charge and with no thought of claiming reward. His

claim of reward failed as he did not give information in exchange of offer.26

In the case of Lalman Shukla v. Gauri Dutt,27 the defendant’s nephew absconded

from home. The plaintiff, who was defendant’s servant, was sent to search for the

missing boy. After the plaintiff had left for the search of the boy, the defendant issued

handbills announcing a reward of INR 501 to anyone who might find out the boy. The

plaintiff, who was ignorant of the reward, was successful in searching the boy. When

he can to know about the reward, he brought an action against the defendant, to

claim this award. It was held by the honourable court that, “since the plaintiff was

ignorant of the offer of reward, his act of bringing the lost boy did not amount to

acceptance of offer, and therefore, he was not entitled to claim the reward.”28

Thus, the council on behalf of the respondent most humbly and respectfully submits

before this honourable court that only if a person has knowledge of the offer and he

acts according to the terms of the offer, it amounts to acceptance thereof. Thus,

merely performing conditions of the offer without having knowledge thereof, does not

amount to a valid acceptance.

NO CONDITION WAS FULFILLED TO CONSTITUTE A CONTACT UNDER SECTION 8, INDIAN

CONTRACT ACT, 1872.


before this honourable court that in the instant case, that in the instant case, no

condition was fulfilled to constitute a contract under the provisions of Section 8,

Indian Contract Act, 1872.

25 (1927) 40 CLR.26 Ibid.27 (1913) 11 All.L.J. 489.28 H.R. Saharay, Dutt on Contract, p. 265.


In the case of Williams v. Carwardine,29the plaintiff, who knew that reward has

been announced to be given to anyone who gave information leading to conviction of

an assailant for murder, gave the necessary information. While giving the

information, the plaintiff mentioned that she had given the information to ‘ease her

conscience’. At that time, she did not intent to claim the award. She however,

subsequently bought an action to claim the same. It was held by the honourable

court that, “since the offer had been accepted with its knowledge, there was a valid

contract and therefore, she was entitled to claim the reward.”30


before this honourable court that Dr. Gupta had merely prescribed the pills to Ajay

for a period of three weeks. This prescription was not made in accordance with the

directions printed on the box by Relicop Pharmaceutical Co. Ltd. Thus, it does not

amount to performance of conditions of the proposal. Further, Dr. Gupta had no

knowledge of the said advertisement at the time of making the prescription to Mr.

Ajay. Thus, it does not amount to acceptance under section 8, Indian contract Act,

1872.

Since, no contract has been entered between the two parties, the council on behalf

of the respondent most humbly submits before this hon’ble court that the petitioner is

not entitled to any reward.

D. THAT MR. RAJAN DID NOT ENTER INTO A CONTRACT ON BEHALF OF

AJAY.


before this hon’ble court that Mr. Rajan did not enter into a contract on behalf of his

minor son Ajay. The petitioner was merely aware of the advertisement and he

believed the accuracy of the statements appearing in it. However, the council most

humbly submits that merely being aware of an offer does not amount to acceptance.

The petitioner did not do any act in furtherance of the offer in order to accept the

same. Instead, when his son Ajay fell down with fever, he was taken to their family

doctor Dr. Gupta and medicines were given to him as per the doctor’s prescription.

29 (1833) 4 B. & Ad. 621.30 Sanjiva Row’s Commentary on The Indian Contract Act, p.476.


Hence, no conditions of the offer were fulfilled in order to constitute a valid

acceptance and thus, no contract was concluded between the parties.

EXTENT OF POWER OF GUARDIAN TO ENTER INTO CONTRACT ON BEHALF OF A MINOR


before this hon’ble court that in order to constitute a valid contract, one of the

essentials under section 10, Indian Contract Act, 187231 is that the parties must be

competent to contract. According to Section 11, Indian Contract Act, 187232 a person

is competent to contract if he has attained the age of majority, is of sound mind and

is not disqualified from contracting by any law to which he is subject. According to

the Indian Majority Act, 1875 a person is said to have attained majority on

completing the age of 18 years.

The council most humbly submits that a minor is not competent to give a valid

consent and a contract entered by a minor is thus void. However, the council most

humbly submits that in certain exceptional cases a guardian can enter into a contract

on behalf of the minor. This can be done provided it is for the benefit of the minor or

to provide him with necessities fit for his condition in life.33

NATURAL GUARDIAN OF HINDU MINOR

The council on behalf of the respondent most humbly are respectfully submits before

this hon’ble bench that natural guardian of a Hindu minor male, a defined under

section 6 of The Hindu Minority and Guardianship Act, 195634 are his parents. Thus

only his father, Mr. Rajan, can enter into a contract on his behalf.

31 Supra 1.32 Supra 2.33 Supra7 and supra 9.34 Section 6, The Hindu Minority and Guardianship Act, 1956

‘Natural Guardian of a Hindu Minor:The natural guardian of a hindu minor, in respect of the minor’s person and property are –a) In case of a boy or unmarried girl – the father and after him, the mother, provided that the custody of

a minor who has not completed the age of five years shall ordinarily be with his mother;b) In case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father;c) In case of a married girl – the husband.

Provided that no person shall be entitled to act as a natural guardian of a minor under the provisions of this section –

a) If he had ceased to be a hindu, orb) If he has completely and finally renounced the world. ‘


In the case of Hari v. Sew35it was held by the hon’ble court that, “it is to be

remembered that a person who is neither appointed a guardian by any court, nor

could claim that status under the law applicable to minors, cannot enter into valid

contract on his behalf. Such a contract is treated as a void contract and cannot to

upheld as a family settlement.”36


before this hon’ble court that Dr. Gupta cannot be considered as a guardian of Ajay.

Further, as the proposal of the company was neither accepted by the minor nor by

his father, thus none of them can sue the company for breach as no valid contract

has been entered between them.

CONTRACT OF NECESSITY

Under the English law, a contract entered by a minor for necessities is valid.

However, in India, this principal has been adopted to limited extent under section 68,

Indian Contract Act, 187237. This provision is applicable only in cases of necessity to

provide him with things suited to his condition in life.38

IF MINOR HAS REAPED ANY BENEFIT

In the case of Rajubala Desi v. Nidhurama Pandit,39 it was held by the hon’ble

court that, “a contract is specifically enforceable against a minor if he has reaped any

benefit under the contract. Further, even though a minor cannot enter into a contract,

yet, guardian of a minor can validly enter into a contract on behalf of the minor.”40

AGREEMENT IN SUB-SILENTIO


before this hon’ble court that under certain circumstances, offeree’s silence, couples

with his conduct, which takes form of positive act, may constitute acceptance, under

35 AIR 1949 Assam 57.36 H.R. Saharay, Dutt on Contract, p. 231.37 Claim of necessaries supplied to person incapable of contracting, or on his account –


38 Peters v. Flemings (1840) 6 M&W 42.39 AIR 1960 Cal 65.40 Mallick, Indian Contract Act, p. 411.


an agreement sub-silentio.41 Therefore, terms of a contract between parties can be

proved not only by his words but also by his conduct.42

In the case of Kedar Das Mohta v. Nand Lal Poddar,43 it was held by the hon’ble

court that, “there must be reciprocity as to the binding of agreement between person

who wants to enforce it and person against whom it is sought to be enforced.”44


before this hon’ble court that conduct coupled with positive act amounts to valid

acceptance of contract, even if the party is silence. But, mere knowledge of proposal

does not amount to a valid acceptance if it is not coupled with a positive act.

E. THAT PROPOSAL WAS NOT ACCEPTED AND PARTIES DID NOT ENTER

INTO A VALID CONTRACT.

The council on behalf of the petitioner must humbly and respectfully submits before

this hon’ble court that no acceptance was made by the petitioner towards the general

offer made by Relicop Pharmaceutical Co. Ltd. And thus, they did not enter into any

valid contract.

THAT A GENERAL OFFER WAS MADE BY THE RESPONDENT


before this hon’ble court that the respondent Relicop Pharmaceutical Co. Ltd. had

made a general offer to the public at large that a reward of INR 15000 will be paid by

the company to anyone who contracts the emerging H1N1 flu or the related virus

after taking their pills daily for three weeks as per the directions prescribed on the

box.

An offer made to the public at large is called a general offer. The person who

accepts such an offer, generally, by performing its conditions, can bind the person

making the offer. Although a general offer is made to the public at large, the contract

is concluded only with that person who acts upon the terms of the offer, i.e., who

41 T.R. Desai, Law relating to Tenders and Government Contracts, p. 136.42 Ibid.43 AIR 1971 Pat 253 p. 255-256.44 Supra 4.


accepts the offer. Two manifestations of a willingness to make the same bargain do

not constitute a contract unless one is made with reference to the other.

In the case of Carlill v. Carbolic Smoke Ball Co.,45it was held by the hon’ble court

that, “this being a general offer addressed to the world, had ripened into a contract

with the plaintiff by her act of performance of conditions, and, thus accepting the

offer. Although the offer is made to the world, the contract is made with that limited

portion of the public who comes forward and performs the condition on the faith of

the advertisement.”46

NO ACCEPTANCE MADE BY THE PETITIONER


before this hon’ble court that the petitioner, Mr. Rajan was merely aware of the

advertisement and he believed in the accuracy of the statements appearing in the

advertisement. However, for a valid contract to be made, the proposee should either

accept the offer expressly or imply his acceptance through his conduct which takes

form of a positive act. The petitioner did not fulfil any of the two conditions, instead

he took his son to his family doctor and took medicines as per his prescription.47

Hence, the council on behalf of the petitioner most humbly and respectfully submits

before this hon’ble court that the petitioner did not accept the general offer made by

the respondent company and hence no contract was entered between the parties.

Thus, the petitioner is not entitled to the amount claimed.

THAT MEDICINES WERE NOT TAKEN ACCORDING TO THE DIRECTIONS SPECIFIED BY THE

RESPONDENT COMPANY.


before this hon’ble court that the petitioner did not consume the pills according to the

conditions specified by the respondent.

Arguendo, the advertisement that appeared in the Tribune dated 15 th June, 2015

stated that a reward of INR 15000 will be paid by the respondent company to anyone

who contracts H1N1 flu after taking their pills daily for three weeks as per the

directions printed on the box. Although the petitioner had consumed the same 45 (1893) 1 Q.B. 256 at 268.46 T.R. Desai, Law relating to Tenders and Government Contracts, p. 136.47 H.R. Saharay, Dutt on Contract, p. 231.


pills, but they were not consumed as per the directions specified by the company.

Rather, a three week course of the pills were taken as per the directions of their

family doctor.

Hence, by not consuming the pills as per the directions of the respondent company,

the petitioner did not efficiently comply with the conditions and hence, no valid

acceptance of the general offer was made. Thus, the petitioner is not entitled to the

amount of INR 15000.


THE PRAYER

Wherefore, in the light of the issues raised, arguments advanced and authorities

cited, it is most humbly and respectfully prayed before this Hon’ble Court to adjudge

and declare that:

Mr. Ajay is a minor and does not have capacity to enter into a valid contract.

Dr. Gupta was not aware of the terms and conditions prescribed in the

advertisement.

The parties did not enter into a valid contract.

The petitioner did not consume the pills as per the directions of the

Respondent Company.

The petitioner is not entitled to the sum of INR 15000.

And any other order which this Hon’ble Court may be pleased to grant in the

interest of justice, equity and good conscience.

All of which is most humbly and respectfully submitted.

Date:……… Counsels for the Respondent

Place:


Memorial Moot Respondent

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Transcript of Memorial Moot Respondent