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MODULE - 1
TABLE OF CONTENTS
1.1. LEARNING OBJECTIVES
1.2 LEGAL TERMS AND MAXIMS FROM LAW DICTIONARY
1.1 Learning Objectives
1.2 Legal Terms and Maxims from Law Dictionary
1.3 Meaning of Law and Justice
1.3.1 Nature of Laws 1.3.2 Role of law in business
1.4 Overview of Constitution and Constitutional Governance
1.4.1 Features of the Constitution
1.5 Law making process in India
1.6 Role of the Legislature, the Executive, and the Judiciary
1.7 Hierarchy of Courts
1.8 Sources of Law
1.9 Systems of Law
1.9.1 Civil Law and Criminal Law 1.9.2 Substantive Law and Procedural Law
1.10 Summary
1.11 Key terms
1.12 Self-assessment questions
1.13 References
After completing this module, the learner will be able to
- Understand the meaning of legal maxims and its application in legal texts
- Distinguish between Law and Justice
- Understand the various sources of law and the law-making process
- Acquire an overview of the Constitutional provisions
- Distinguish between various systems of law in India.
A legal maxim is an established principle of law. Legal texts are often filled with legal maxims that are in Latin language. This is because Latin was the official language of the courts of the
INTRODUCTION TO LEGAL
SYSTEMS & CONCEPTS
European states in the mediaeval period. An understanding of these maxims is important to understand legal principles. A legal maxim is a legal phase that explains the position of law. Legal maxims guide the courts in applying the extant laws in a fair and just manner. These maxims are incorporated in the legislations and hence take the form of law. This chapter explains some select maxims as relevant in the context of law relating to Business.
1. Ignorantia Juris non excusat: This means "Ignorance of law is not an excuse". Under this maxim, ignorance of law is not a reason not to comply with it. If ever we are caught on the wrong side of the law, the defence that we were not aware of the law will not hold good. Each person of a country is expected to be familiar with the law of their country in which they reside and lack of awareness of law cannot be a reason to not abide by the law. E g: 'A' owns a rifle without a valid licence, and he is charged for the same. 'A' cannot plead that he was not aware of the law that possession of a rifle can only be under a valid licence. 2. Volenti Non Fit Injuria: This means "to one who is willing no harm is done". The meaning of this maxim is that once a person gives his consent to doing an act which is likely to cause him harm or injury, even if the injury is caused by another person, he cannot claim any damages from that person who was responsible for the injury. This is because he has consented to the act and therefore was aware of the consequences of the act. Eg 1: 'A' agrees to sit in the car of his friend 'B' being fully aware that the brakes of the car are not functional and sustains injuries. A cannot claim any relief from B as he has voluntarily consented to sit in the car knowing its condition. Of course, the claim for relief would hold good only if A was unaware of the fact that the car had no breaks and yet gave his consent, thereby accepting the risk of injury. Eg 2: If you invite someone to your house for dinner, you cannot sue them for trespassing on your property 3. Ultra Vires: This means something "beyond the powers of a person/entity performing an act." The reference to this legal maxim is mostly in the context of a company which is an incorporated association. The object clause of the Memorandum of Association of the company includes the purposes for which the company is incorporated. An act of the company which is not stated in the objects of the Memorandum is treated as Ultra Vires as it is beyond the authority of a company to do such acts. An Ultra Vires act is 'void ab initio' and has no legal effect. An act Ultra Vires the company cannot be ratified or made good even if all the shareholders wish to do so. The doctrine of ultra vires is said to have originated with the intent to protect the interests of the shareholders of the company. Eg: The Memorandum of Association of ABC Limited contains the following objects i) Make, sell or give on lease railway carriages and wagons i) Purchase and sell as Merchants or agents' coal, timber, metals etc The directors of ABC Limited entered into a contract with another company XYZ limited for financing the construction of an airport. This was held to be ultra vires as it was outside the scope of the objects of the company. 4. Uberrimae Fidei: The meaning of Uberrimae Fidei is "of utmost and complete good faith". The legal doctrine of Uberrimae Fidei is the foundation of an insurance contract. The contract of insurance is a contract that requires full disclosure of all material facts on the side of both parties. The non-disclosure of material facts by the insured whether
legally convened. Meetings of a company are a formal affair. As a company is a separate legal entity created by law, the decisions of the company are taken in duly convened meetings of either the board of directors or the shareholders. One of the essentials of a valid meeting is the presence of a quorum as prescribed by the Companies Act, 2013. Eg: For a company, the quorum fixed by its articles for a Board meeting is one third of the total strength of directors or two directors whichever is higher. In a board meeting for which the required quorum is 4 directors, only one director was present. Hence the meeting had to be adjourned for want of quorum”
9. Quid Pro quo: The maxim Quid Pro quo means 'something in return for something' and is an essential requirement of a valid contract. It means the mutual consideration that parties to a contract give each other in an agreement, rendering the agreement valid and enforceable. Eg: Anand bought a laptop from Bhaskar for Rs 60,000. In this contract, both the parties have received something in return. While Anand received the laptop, which is his consideration or quid pro quo, Bhaskar received the money consideration which is Rs 60,000. 10. Quantum Meruit: This is a Latin phrase which means 'as much as is earned'. In other words, it means the actual value of the services rendered. The maxim of quantum meruit arises in those cases where one person gets a benefit in a contract, while the other party gets nothing, making it a case of unjust enrichment by one party at the cost of the other. Hence the party who has benefitted is required to compensate the party who has provided the benefit. Eg: Mary was the owner of a publishing company and entered into a contract with John, an author to write a book. John started the work and completed most of the chapters of the book. However, before the book could be printed and published, the publication house ran into losses and had to be wound up. John can claim quantum Meruit for the work that has been done by him as it was not his fault that the book could not be published. 11. Prima Facie: Prima Facie means 'based on first impression' or at 'first sight'. Prima facie is defined as something that is assumed to be true in the first instance, unless the contrary evidence is provided. Eg: A person who is in possession of a gun in the scene of a crime is presumed to have committed the crime, as on the face of it, it appears that he may have fired, being in possession of the gun while further investigation may reveal otherwise. 12. Jus in rem: It means 'right against the whole world'. This legal maxim means 'a right that can be exercised against the world at large'. The right of ownership is an absolute right. A person who is the owner of something can exercise his ownership rights over his possessions against the world at large. His right of ownership is absolute and cannot be challenged by anyone. This right that we have against the whole world is termed as 'Jus in rem'. Eg: Anand bought a laptop from Bhaskar and also got the possession of it. Being the rightful owner of the laptop, his right is absolute, and no one can infringe upon this right as he has a 'Jus in rem'. 13. Jus in Personem: As against the above maxim of Jus in rem, the maxim of Jus in Personem means the right that can be exercised against a specific person. A Contract is an agreement creating a legal obligation between two parties. The parties to a contract acquire rights
against each other. A contract creates a 'Jus in personem'. For example, if A promises to deliver goods to B under a contract and fails to deliver. B has a right to claim compensation from A for failing to deliver the goods. This right that B has, can be exercised only against A. Hence, this is a case of Jus in Personem. Eg: Anand and Bhaskar are in a contractual relationship where Bhaskar promised to sell his laptop to Anand for Rs 60,000. However, he failed to deliver the laptop as per the terms of the contract. Anand has the right to sue Bhaskar for breach of contract. This is a right that he can exercise only against Bhaskar.
14. Modus Operandi: Modus Operandi means method of working. It is a distinct pattern or method of operation. The legal maxim of modus operandi also refers to a style, a way of working or a routine way of doing things or a method of operation. Eg: It was evident to the Police that the thefts were conducted by the same criminal as he adopted the same modus operandi in all his crimes. 15. Delegatus Non potest Delegere : This legal maxim means a 'delegate cannot further delegate'. The maxim applies in those cases where a person to whom a power, trust, or authority is given to act on behalf, or for the benefit of, another, cannot delegate this obligation unless expressly authorized to do so. Eg: An agent who has been appointed to undertake a task on behalf of his principal cannot delegate the work to another person, without express authority of his principal, as he is the person to whom the work has been entrusted and he cannot further delegate. 16. Consensus ad idem : It means meeting of the minds. Two people are said to be in consensus when they are agreeing on the same thing at the same time in the same sense. Consensus ad idem is the key to an agreement under the contract law. Consensus is the foundation of an agreement, where the parties are in complete consensus about all the terms of the agreement. Where there is no consensus, there is no agreement. Eg: A 's offer was misunderstood by B and he gave his acceptance. Legally there is no contract between A and B as there is no 'consensus ad idem'. 17. Abinitio : This means 'from the very inception or from the very beginning'.
Eg: A contract with a minor is void ab initio as a contract with a minor is void from the very beginning. A minor cannot become a party to a contract being incompetent to contract
18. Bonafide : good faith; genuine
Eg: The farmers whose crop was destroyed due to floods, had a bonafide claim for compensation for their losses.
19. Defacto : a Latin expression used to say that something exists even though it may not be legally accepted as existing. Eg: Dinesh was taking care of some orphaned children and therefore was like a de facto guardian for them. 20. Dejure : De jure is the Latin expression for "by law" or "by right" and is used to describe a practice that exists by right or according to law Eg: Ravi is the de jure owner of the Car
Some of the laws are mandatory in nature i.e., they impose an obligation on the citizens to comply with them. For example, it is mandatory to follow the traffic rules. Some laws are prohibitory. They forbid us from doing something. For example, employing child workers is strictly prohibited by law. Some laws are permissive, they provide freedom to people to do actions within the framework of the law. Eg: People are free to enter into contracts.
1.3.2 Role of law in business:
Every business must function within a legal framework. Laws determine the procedures for setting up a business and the structure to be followed. Laws also regulate business and ensure that stakeholders interests are protected. Laws bring firmness into business transactions as the rule of law not only allows people to understand what is expected of them in their personal capacities but also sets forth rules for business so that they, too, know what they can expect in their dealings with other people. Laws help in creating an honest environment to conduct business where the interests of consumers and business owners are protected, and disputes are resolved.
The Indian Constitution is valued as the supreme law of our country and every Indian citizen irrespective of their power and position is expected to abide by the set of rules and regulations of the constitution. Apart from dealing with the structure of the government, the constitution makes detailed provisions for its administration. It frames the fundamental political principles, procedures, practices, rights, powers, and duties of the government. The Indian constitution imparts constitutional supremacy as it is created by a constituent assembly and adopted by its people, with a declaration in its preamble. The preamble to the constitution is an introductory statement that explains its philosophy and objectives, the core values, and the principles of the nation.
The Preamble declares India to be a sovereign, socialist, secular, and democratic republic.
The objectives stated by the Preamble are to secure justice, liberty, equality to all its citizens and promote fraternity to maintain unity and integrity of the nation.
The essence of the Indian constitution is reflected in its key words which are as follows:
Sovereign : India is a sovereign country. Sovereignty means independent authority of the State, not being subject to the control of any other State or external power.
Socialist: This means the achievement of socialist ends through democratic means. It holds faith in a mixed economy where both private and public sectors co-exist side by side.
Secular: This means that all the religions in India get equal respect, protection and support from the state.
Democratic: This implies that the Constitution of India has an established form of Constitution which gets its authority from the will of the people expressed in an election.
Republic: The term indicates that the head of the state is elected by the people. That means people provide power to leaders they elect, to represent and serve their interests in a 'Republic.
1.4.1 Features of the Constitution
One of the factors contributing to the strength of the Indian constitution are its unique features.
1.4 OVERVIEW OF CONSTITUTION AND CONSTITUTIONAL GOVERNANCE
Let us see what these are:
1. World's longest Constitution
The Indian constitution has the distinction of being the lengthiest detailed constitutional document which is elaborately written. A lot of factors have been the reason why the constitution is bulky. Firstly, the vastness of the country and its diversity. Secondly, it is a single constitution for the centre and the states. The Constitution of India contains not only the fundamental principles of governance but also detailed administrative provisions.
2. Taken from various sources The Constitution of India has been inspired by various other constitutions. Certain features including, the fundamental rights and the directive principles of the state policy have been inspired by the American and Irish constitutions. The features such as, the principle of cabinet government and the relationship between the executive and the judiciary have been drawn from the British government. 3. Federal System with Unitary Features
What is unique about the Indian Constitution is that it establishes a federal system of government with certain unitary features. Let us see what the usual features of a federal structure are. The essential features of a federal system are dual government, distribution of powers between the centre and the states, supremacy of the constitution, independent judiciary, and a rigid procedure for amending the constitution. The Indian Constitution possesses all these features. However, the Indian Constitution also contains a large number of unitary or non-federal features, such as a strong centre, single Constitution, appointment of state governor by the Centre and so on. By this we can conclude that the Constitution is substantially federal with unitary features.
4. Parliamentary Form of Government
The constitution provides for a parliamentary form of government both at the centre and the states. The parliamentary form of government is responsible to the legislature for its policies and acts. In a parliamentary system, the President is the nominal executive whereas the Prime minister is the real executive.
5. Integrated Judiciary
Another noteworthy feature of the Indian Constitution is an integrated judiciary. This means that the rulings made by the higher courts are binding on the lower courts. The Indian constitution has adopted an integrated judicial system. The Supreme Court incorporates all lower courts from the Gram Panchayat to the High Court, being the apex court.
6. Directive principles of state policy
The directive principles of state policy are a novel feature of the constitution. They are guidelines that the government must bear in mind while formulating laws and policies. A large number of Directive Principles are socialistic in nature and dedicated to achieving social and economic welfare of the people, with the objective to establish India as a welfare state.
7. Single citizenship
The Indian constitution allows its citizens to hold a single citizenship. Single citizenship
8.3 Right against exploitation:
The Constitution guarantees right against exploitation under Article 23 and 24. Any form of exploitation is strictly prohibited by law. Historically the country has witnessed certain form of exploitation in the nature of exploitation of lower castes by the upper castes, human trafficking, exploitation of labour, practices of Sati, employment of children in factories etc. However right against exploitation has ensured that they are strict laws in place to curb human trafficking or forced labour, employment of children under the age of 14 in factories.
8.4 Right to Freedom of religion:
Every individual has the right to practice any religion of his/ her choice, as religion is a matter of personal beliefs and values. India is a secular country, and the state has no official religion. Hence all religions are treated equally, and citizens have the right to practice their faith, establish religious and charitable institutions. Like other fundamental rights, the right to freedom of religion is not absolute and is also subject to certain reasonable restrictions. No individual can indulge in acts against public policy in the name of religion or create any disturbance and show intolerance among people of India.
8.5 Cultural and Educational Rights (Article 29-30)
Cultural and Educational rights guaranteed under the Constitution seek to preserve the rights of the religious, cultural and linguistic minorities. India being a country with a diverse population of races, languages and cultures, there is a greater need to preserve its rich cultural heritage. Rights of the minorities need to be protected. Education needs to be made accessible to all.
8.6 Right to constitutional remedies:( Article 32-35)
The constitution also guarantees the right to enforce the fundamental rights in the event of their violation. When the fundamental rights are violated, the aggrieved party can approach the court. The Supreme court has the power to issue writs to enforce the fundamental rights.
Essentially, the role of the legislature is to make laws. The process of making law through enactment of statutes is a structured process that begins with introduction of a bill in either of the houses in the parliament. A bill is initially introduced in the Lok Sabha, the lower house and moves to the Rajya sabha, the upper house, before it is submitted to the President for assent.
The following are the steps that are undertaken before a bill becomes an Act
- A bill undergoes three readings in each of the houses of the Parliament
- At the first stage, the bill is introduced by the select/ joint committee and undergoes the first reading in the Lok sabha. This consists of general discussion on the principles of the Bill and its provisions.
- In the next stage, the bill is considered clause by clause for making any amendments in the bill
- The third reading consists of the discussion on the bill, as amended.
1.5 LAW MAKING PROCESS IN INDIA
- The bill once approved passes to the Upper house, the Rajya Sabha, where it undergoes a similar process before it is passed in the Rajya Sabha.
- Once the bill is passed in both the houses of the Parliament, it is presented to the President.
- Once the President signs the bill, the bill becomes an Act and a statute.
India has adopted a parliamentary form of government with a clear demarcation of functions of legislature, the executive and the judiciary. These three organs work together for the effective functioning of the government by complimenting each other.
1.6.1 Legislature:
The role of the legislature is to formulate laws and it comprises of two houses, the lower house which is called as the Lok Sabha and the upper house which is called as the Rajya Sabha. The main function of the legislature is to enact laws and to deliberate on matters of national importance, reflect on public opinion and to amend the laws if required.
Of the three functions of the government, the legislature is the most important function of the government. Law originates from the legislature and statutes are the most important sources of law. It is the function of the legislature to formulate the will of the state in the form of Acts and provide it with legal character. By enacting laws on contemporary issues, the legislature acts as a catalyst for reforms in the country. The executive is accountable to the legislature.
1.6.2 The Executive:
That organ of the government that is responsible for implementing the laws is the executive. The executive is composed of the President or Governor, Council of Ministers at Union or State level, along with the administration which executes and enforces laws made by the legislature. The executive is the organ that implements the laws enacted by the legislature and enforces the will of the state. It is the administrative head of the government.
1.6.3 The Judiciary:
The judiciary is that branch of the government that interprets the law, settles disputes and administers justice to all citizens. The judiciary is considered as the watchdog of democracy, and also the guardian of the Constitution. It comprises of the Supreme Court, the High Courts, District, and other subordinate courts.
The judiciary is that branch of law that is entrusted with the responsibility of interpreting the law, resolving disputes and according to justice. The judiciary has an important role in the constitutional framework as it is responsible for ensuring that citizens' rights are protected. The Indian constitution provides for an independent and an integrated judiciary with a definite hierarchy as given below in Fig 1
1.6 ROLE OF THE LEGISLATURE, THE EXECUTIVE AND THE JUDICIARY
1.7 HIERARCHY OF THE COURTS IN INDIA
provided to people to settle disputes outside of the Court.
1.7.2 Merits of Alternative Dispute Resolution:
There are definite advantages of resolving disputes through the ADR process. Apart from providing means for a speedy resolution of disputes, the ADR process is also cost effective as it does away with litigation expenses. The environment of alternative dispute resolution mechanisms encourages a peaceful settlement of disputes without resorting to adjudication. Disputing parties in the ADR process are more open and forthcoming as it creates an informal and less rigid environment.
Arbitration: Under the arbitration mechanism, the dispute is submitted to one or more arbitrators who make a binding decision on the dispute. The arbitration process is led by an arbitrator, who is appointed by mutual consent of the disputing parties. He is a third party who carefully considered the submissions of both the parties. An arbitrator will encourage constructive communication between parties and acts like a referee in the facilitation of the arbitration process.
Conciliation: Conciliation is a less formal process than arbitration where in a conciliation officer is appointed to resolve the dispute. Conciliation is undertaken to achieve settlement between the disputing parties. Conciliation process can be voluntary or compulsory. Conciliation is usually initiated by one party who invites in writing, the other party to conciliate. The conciliation officer may require both parties to submit to him their contentions through supporting evidence. The conciliation officer drives the parties towards reaching an optimal solution.
Commercial courts: A bulk of disputes arise from the business dealings. Commercial Courts are designed to resolve disputes in the course of trade and commerce. Under the Commercial Courts Act, 2015, a commercial dispute means a dispute relating to
(i) ordinary transactions of merchants, bankers, financiers, and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents.
(ii) export or import of merchandise or services.
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing, and financing of the same. (v) carriage of goods.
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
(xiii) subscription and investment agreements pertaining to the services industry including outsourcing services and financial services;
(xiv) mercantile agency and mercantile usage;
(xv) partnership agreements;
(xvi) technology development agreements;
(xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits; (xviii) agreements for sale of goods or provision of services;
(xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum;
(xx) insurance and reinsurance;
(xxi) contracts of agency relating to any of the above; and
(xxii) such other commercial disputes as may be notified by the Central Government".
Hence disputes arising out of commercial dealings between parties are the subject matter of a commercial dispute. Commercial courts are set up by the state governments in every district and state. As compared to the traditional courts, the commercial courts are expected to resolve disputes in a time bound manner.
Having discussed the concept of law and having acquired an understanding of the Constitution and Constitutional governance, let us understand the various sources of law. We have seen the term law has many definitions. Law is considered as a "system of rules which a particular country or community recognises as regulating the actions of its members and which it may enforce by the imposition of penalties". To understand how laws have evolved, it is important to look at the various sources of law. Law in India has originated from various sources, both traditional and modern. A host of customs, statutes, principles of justice and equity, ethics and various international treaties and agreements have been added to the body of law in India.
Sources of law can be divided into (1) Principal sources of law (2) Secondary sources of law as shown in Fig 2
(1) Primary sources of Law
(a) Customs or customary law: Customs are the oldest sources of law. A custom is an established social behaviour. A substantial part of law is customary law. Many customs that have been in prevalence, have already been accepted as laws and have been
1.8 SOURCES OF LAW:
the main source of Mercantile law. The principles of Equity refer to a set of rules, which neither originated from customs nor statutory law. Equity rules were formed on the basis of dictates of conscience and are an important source of law. We have seen that statutes are an important principal sources of law. Some of the statutes are also secondary sources of law.
1.9.1 Civil Law and Criminal Law:
Civil Law
The legal system comprises rules and regulations that deal with different types of offences. On the basis of the nature of offences and the resultant punishments and remedies, laws may be broadly classified into two categories, namely civil and criminal law. Civil law and criminal law are two distinct branches of law with different substantive provisions, procedures, and nature of punishments.
Civil law is the body of law that deals with civil rights and obligations. It includes various aspects such as laws relating to property, trade, family etc. Civil Law deals with disputes between private individuals. The purpose of civil law is to resolve disputes in an amicable manner. Punishments for civil wrongs are in the nature of monetary compensation. A complaint is a 'tiff' and the person who files a complaint is a plaintiff. The person against whom the complaint is filed is called the defendant. Hence the parties to a civil case are Plaintiff Vs Defendant. The intention in civil law cases is to compensate the injured party and not to punish the breaching party. The defendant in civil cases is either liable or not liable. Example of Civil law legislations include the Contract Act, 1872.
Example: A trespassed on B's property. This is an infringement of B's right to peaceful possession of his property. This is a civil wrong and A has to compensate B.
A was in a contract to supply raw material to B. A failed to deliver the raw material and B had to incur an additional cost to acquire the raw material from another supplier. A breached the contract and has to pay damages to B to the extent of loss incurred by him. This is a civil suit between A and B.
Criminal Law
Criminal law simply put is the law that deals with crimes or offences that are prohibited by the State as the acts are harmful for public safety and welfare. Punishment for criminal acts are in the nature of imprisonment and heavy fines. In criminal actions, there is an intent to cause harm to people or property. In a progressive society, crime is understood to be a breach of duty committed, not just against an individual but against a state or society at large. In criminal cases, the case is filed by the government against the accused. Hence parties in case of criminal law are 'the public prosecutor and the accused'. An individual may be reporting a crime, but the case will be filed only by the government. Unlike civil law, the intent of criminal law is to punish the offender so as to deter him and other wrong doers from repeating such crimes. An act of crime has to be accompanied by 'mens rea' or guilty mind.
Important criminal law legislations include the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872.
1.9 SYSTEMS OF LAW
1.9.2 Substantive Law and Procedural Law
Another important differentiation between the various branches of law is that of substantive law and procedural law. Substantive law is that branch of law which deals with legal provisions relating to the rights and duties of the parties, relationship between individuals. It is the main body of law that states the position of law on a matter.
Procedural law on the other hand outlines the procedure to be followed in resolving the disputes or to enforce rights or to claim compensation. While issues relating to how the facts of the case need to be interpreted, or the damages in case of breach of contract need to be ascertained are a subject matter of substantive law, procedural law, outlines the processes through which the case proceeds. Procedural law is subordinate to substantive law and supports the execution of law. The difference between substantive law and procedural law can be understood with an example.
Example: A was in a contract to supply raw material to B. A failed to deliver the raw material and B had to incur an additional cost to acquire the raw material from another supplier. Whether this amount to failure on the part of A liable for damages becomes the subject matter of substantive law. On the other hand, what court procedure B has to follow for claiming compensation, is the subject matter of procedural law.
A legal maxim is an established principle of law. Legal texts are often filled with legal maxims. An understanding of these maxims is important to understand the legal principles. Legal maxims guide the courts in applying the extant laws in a fair and just manner. These maxims are incorporated in the legislations and hence take the form of law. Law refers to a body of rules and regulations that are imposed to bring order in the society.
Laws govern every aspect of our life, both personal and professional. The decisions that we take in business have legal implications. Laws may be mandatory, prohibitive, or permissive. These rules are imposed on the people of a country so that there is order in the society and justice prevails. The objective of laws is also to ensure that rights of the people are protected and disputes between them are settled.
The Indian Constitution is valued as the supreme law of our country and every Indian citizen irrespective of their power and position is expected to abide by the set of rules and regulations of the constitution. Apart from dealing with the structure of the government, the constitution makes detailed provisions for administration of the government. It frames the fundamental political principles, procedures, practices, rights, powers, and duties of the government. The Indian constitution imparts constitutional supremacy as it is created by a constituent assembly and adopted by its people, with a declaration in its preamble.
India has adopted a parliamentary form of government with a clear demarcation of functions of Legislature, the executive and the Judiciary. These three organs together for the effective functioning of the government by complimenting each other. Law in India has originated from various sources, both traditional and modern.
The legal system comprises rules and regulations that deal with different types of offences. On the basis of the nature of offences and the resultant punishments and remedies, laws may be broadly classified into categories, namely civil and criminal law. Civil law and criminal law are two distinct branches of law with different substantive provisions, procedures and nature of punishments. Substantive law is that branch of law which deals with legal provisions relating to the rights and duties of the parties, relationship between individuals. It is the main body of law
1.10 SUMMARY
- The legal maxim __________________________means something in return for something.
- The minimum number of people required to attend a meeting is called________
(Ans: 1. Legal maxims, 2. Jus in rem, 3. Ultra Vires, 4. Quid Pro quo, 5. Quorum
IV. True and False:
- Law is system of rules that are imposed on the people of a country with the intention to bring order in the society
- Justice refers to the quality of being fair
- The Contract Act is an example of procedural Law
- The IPC is an example of substantive law
- Laws regulate business and ensure that stakeholder interests are protected.
Ans: 1. True, 2. True, 3. False, 4. True, 5. True
V. Match the following
A B
- Law made by the Parliament a Personal Laws
- Judge made law is known as b. Authoritative precedents
- Decisions of the Supreme Court are c. Statutory Law
- To stand by what has been decided is d. Case laws
- Laws are influenced by religious customs of e. Stare decisis
different communities.
Ans: 1. c2. d, 3. B, 4. E, 5. a
VI. Multiple choice question
- Quantum Meruit means
a. Consideration b. As much as earned c. The Law will always ensure justice d. Things speak for themselves
- Delegatus non potest delegare
a. Debtor follows the person of the debtor b. An action does not arise from a bare promise c. A delegated power cannot be further delegated d. The law does not concern itself with trifling matters
- An agreement with a with a minor is ________
a. Void b. Void ab initio c. Valid subject to certain conditions d. Can be enforced by law
- An example of procedural law
a. The Income tax Act b. The Limitation Act c. The Contract Act d. The Consumer Protection Act
- That body of the government that enacts the laws is the
a. Executive b. Legislature c. Judiciary d. The Supreme Court
- _____________becomes a judgement given by a higher court that the lower courts are obligated to follow a. Customs b. Statutes c. Precedents d. Ratio decidendi.
Ans 1.b, 2.c, 3.b,4. b, 5, f, 6 k
- Pathak A (2005), Legal Aspects of Business (7th ed.) Tata Mc Graw- Hill
- Joshi A.A (2009), 'Handbook of Legal Language' Hind Law House
1.13 REFERENCES
