Unit 1_Notes_Working Draft

Contents
Constitutional Law and Other laws .......................................................................................................... 1
Significance of Constitutional Law: ......................................................................................................... 1
Differences from Other Laws: .................................................................................................................. 4
Constitutional Law v. Ordinary Law: ....................................................................................................... 5
Acts and Rules ............................................................................................................................................. 6
Acts (Laws): .............................................................................................................................................. 6
Rule-Making Power: ................................................................................................................................. 6
Rules: ........................................................................................................................................................ 6
Substantive and Procedural Law............................................................................................................... 7
Right and Duty: ......................................................................................................................................... 7
Substantive Law:....................................................................................................................................... 8
Procedural Law: ........................................................................................................................................ 9
Differences between Substantive and Procedural Law: .......................................................................... 10
Examples of substantive laws ................................................................................................................. 11
Examples of procedural laws .................................................................................................................. 13
Courts and Hierarchy ............................................................................................................................... 14
Identification of Sources of law and Case law ........................................................................................ 15
What is the importance of precedent as a source of law? ....................................................................... 15
Identifying legal terms from the passage and explaining their meaning ............................................. 16
Passage 1: ................................................................................................................................................ 16
Passage 2: ................................................................................................................................................ 17
Passage 3: ................................................................................................................................................ 19
Importance of specific terms in relevant enactments ............................................................................ 20
1. Damage and Damages: ....................................................................................................................... 20
2. Void and Voidable: ............................................................................................................................. 22
3. Compensation and Solatium: .............................................................................................................. 23

Note: [This note is a guide, simplifying key concepts for better understanding. Use it with
the prescribed textbooks for a thorough grasp. If you spot any errors in this working draft
of the notes, please let me know.]

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 Constitutional Law and Other laws

Significance of Constitutional Law:

1. Foundation of Legal System:

- Constitutional law serves as the foundation of the legal system in a country. It establishes the
fundamental principles, structures of government, and the rights and duties of citizens.

2. Framework for Governance:

- The Constitution sets the framework for the organization and functioning of the government.
It defines the structure of various branches of government, their powers, and their inter-
relationships.

3. Separation of Powers:

- Constitutional law in India defines the separation of powers among the executive, legislative,
and judicial branches.

4. Checks and Balances:

- Constitutional law sets up a system of checks and balances to stop anyone from using too
much power. It clearly outlines what the executive, legislative, and judicial branches can do,
making sure none of them becomes too powerful.

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Illustration to Understand Separation of Powers and Checks and Balances:

Consider the passing of a law related to environmental protection:

Legislative (Parliament): Parliament debates and passes a law aimed at protecting the
environment, setting standards for industrial emissions.

Executive (Government): The government, through its various departments, is responsible for
implementing and enforcing this law. They may create regulatory bodies to monitor and regulate
industrial activities.

Judiciary: If a citizen or a group believes that the law or its implementation is infringing on
their rights, they can approach the judiciary. The judiciary, in this case, acts as a check by
reviewing the law's constitutionality and ensuring that the executive is enforcing it within legal
limits.

This example illustrates how each branch has a role in the process:

The legislature makes the law,

the executive implements it, and
the judiciary ensures that both the law and its enforcement adhere to constitutional
principles.

While not a perfect separation, it showcases the interplay and checks and balances within
the Indian governmental system.

5. Rule of Law:

- It upholds the principle of the rule of law, emphasizing that all individuals, including
government officials, are subject to and accountable under the law.

[The Rule of Law is fundamental principles that establishes a framework in which all
individuals, including government authorities, are subject to and accountable under the law. It
emphasizes that laws should be fair, transparent, and applied consistently, ensuring equal
treatment for everyone.]

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6. Protection of Fundamental Rights:

- Constitutional law serves as a safeguard for the fundamental rights and freedoms of
individuals. It acts as a protective shield, preventing the government from taking arbitrary
actions and ensuring that citizens retain specific essential liberties.

- The judiciary has the authority to enforce these rights and strike down laws inconsistent with
these fundamental guarantees.

7. Judicial Review:

- Constitutional law grants the judiciary the power of judicial review. This allows courts to
examine the constitutionality of laws and government actions, ensuring that they align with
constitutional principles.

8. Amendment and Evolution:

- Constitutions typically provide procedures for amendment, allowing for adaptation to

changing societal norms and needs. This ensures that the legal framework remains relevant over
time.

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Differences from Other Laws:

1. Hierarchy:

- Constitutional law holds the highest position in the legal hierarchy in India. It takes
precedence over all other laws. If there is a conflict between a constitutional provision and any
other law, the constitutional provision prevails.

2. Foundational Nature:

- Constitutional law lays the foundation for all other laws in India. It defines the powers of the
central and state governments, the relationship between the union and states, and the
fundamental rights of individuals.

3. Supremacy:

- The Constitution is supreme, and no law, including ordinary statutes, can violate its
provisions.

4. Constitutional Amendments:

- The process of amending the Constitution in India is outlined in Article 368. It involves a
more rigorous procedure compared to the enactment of regular laws, reflecting the special status
and significance of the Constitution.

In summary, constitutional law provides the framework within which all other laws operate in
India.

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Constitutional Law v. Ordinary Law:

 Constitutional Law: This is the law that governs the Constitution of a country. It
includes the rules and principles regarding the structure of the government, the rights of
the citizens, and the methods of amending the Constitution. It’s like the rule book for
running the country.
 Ordinary Law: These are the laws that are enacted by the legislature on various subjects
within its competence. They deal with everyday matters like criminal law, civil law, tax
law, family law, etc. These laws must be in accordance with the Constitution.

In essence, constitutional law sets the fundamental principles and framework, while ordinary
law fills in the details within that framework.

Let's use the example of the Right to Education (RTE) Act in the Indian context to
illustrate the relationship between constitutional law and ordinary law:

- Constitutional Law (Framework): The Indian Constitution, particularly under Article 21-A,
recognizes the right to education as a fundamental right. It sets the framework by declaring that
the state shall provide free and compulsory education to all children aged 6 to 14 years.

- Ordinary Law (Details): The Right to Education Act [THE RIGHT OF CHILDREN TO
FREE AND COMPULSORY EDUCATION ACT, 2009], enacted in 2009, is an example of
ordinary law. It fills in the details within the constitutional framework. This act specifies how the
government will implement and fulfill the right to education, detailing aspects such as the
responsibilities of the government, the role of local authorities, the norms and standards for
schools, and the prohibition of certain practices like screening procedures during admissions.

So, in this context, the constitutional law (Article 21-A) sets the fundamental principle –
the right to education. The Right to Education Act serves as the ordinary law that outlines the
specific procedures to implement and realize that right in practical terms.

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 Acts and Rules

Acts (Laws):

- Significance: Acts, also known as laws or statutes, are primary pieces of legislation enacted
by the Parliament or State Legislatures. They play a fundamental role in establishing legal
frameworks, defining rights and obligations, and creating institutions.

- Example - Motor Vehicles Act: The Motor Vehicles Act in India is an Act of Parliament
that lays down the fundamental rules and regulations regarding the operation of motor vehicles.
It covers issues such as licensing, registration, traffic rules, and penalties for violations.

Rule-Making Power:

- Significance: Acts often confer rule-making powers to competent authorities or bodies. This
power enables them to create rules to manage day-to-day operations, streamline processes, and
ensure the effective implementation of the Act without requiring frequent amendments to the Act
itself.

Rules:

- Significance: Rules are subsidiary legislation created under the authority of an Act to provide
detailed procedures, implementation mechanisms, and administrative details. Rules help in the
smooth functioning and enforcement of Acts by specifying how the provisions of the Act will be
practically applied.

- Example - Motor Vehicles Rules: The Motor Vehicles Rules are created under the Motor
Vehicles Act to provide detailed guidelines on various aspects, including vehicle standards, road
safety measures, and licensing procedures. These rules supplement the Act by offering specific
instructions for its implementation.

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 Substantive and Procedural Law
Right and Duty:

 Right:
A right is a legal entitlement or claim that an individual or entity has, which is recognized
and protected by law. Rights confer the authority to act or demand certain actions or
abstentions from others.
 Duty:
A duty is an obligation or responsibility imposed by law, contract, or moral
considerations. It outlines what a person or entity is required to do or refrain from doing
in specific situations.
 Examples of Right and Duty:
o Civil Law Context:
 Right Example: Imagine you buy a toy from a store. You have the right to
own and play with that toy because you paid for it. No one else can take it
away from you without your permission.
 Duty Example: Now, think about the store. They have a duty to provide
you with the toy you paid for in good condition. It's their responsibility to
make sure you get what you bought.
o Criminal Law Context:
 Right Example: Picture yourself in a court if someone accuses you of
something. You have the right to a fair trial. This means you can have a
lawyer, you're innocent until proven guilty, and you can present your side
of the story.
 Duty Example: On the other side, the police have a duty to follow the
rules when they arrest someone. They must treat people fairly, not use
excessive force, and make sure the accused person knows their rights.

 Simply put, rights give you the freedom to do certain things or ask for specific actions,
while duties tell you what you must do or avoid.

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Substantive Law:

 Substantive law refers to the body of laws that establishes and defines the rights and
duties of individuals or entities. It encompasses the legal principles and rules that govern
various aspects of conduct.

Illustration - Civil Law:

Consider a scenario involving a breach of contract:

- Substantive Law: The Indian Contract Act is a substantive law that defines the rights and duties
of parties entering into contracts. It outlines when a contract is valid, what constitutes a breach,
and the remedies available to the injured party.

Illustration - Criminal Law:

Imagine a case involving theft:

- Substantive Law: The Indian Penal Code (IPC) is a substantive law that defines offenses,
including theft. It outlines the elements that constitute theft, such as dishonest intention and
taking of movable property, and prescribes the corresponding punishment for the offender.

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Procedural Law:

 Procedural law outlines the methods and processes by which substantive law is
administered, enforced, and justice is sought. It governs the procedures to be followed in
legal actions, investigations, and court proceedings.

Illustration - Civil Law:

Consider a civil case involving a contractual dispute:

- Procedural Law: The Code of Civil Procedure (CPC) is a procedural law that provides the
mechanisms and steps to be followed in civil cases. It outlines the process for filing a lawsuit,
presenting evidence, and obtaining a judgment.

Illustration - Criminal Law:

Imagine a criminal trial for theft:

- Procedural Law: The Criminal Procedure Code (CrPC) is a procedural law that sets out the
procedures for the investigation and trial of criminal offenses. It outlines the arrest process, bail
procedures, evidence presentation, and the trial process to ensure a fair and just legal proceeding.

In summary, substantive law defines the rights and duties, while procedural law outlines
the processes and methods for enforcing those rights and resolving legal issues. In both civil and
criminal contexts, substantive laws establish the legal principles, and procedural laws dictate
how those principles are implemented and justice is sought.

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Differences between Substantive and Procedural Law:

Substantive Law:

- Focus: Substantive law focuses on the rules that determine our rights and duties in everyday
life.

- What It Does: It tells us what we can or can't do and what others can or can't do to us.

- Examples: Imagine it as the "what" of the law – laws about contracts, crimes, property, and
rights fall under substantive law.

- In a Nutshell: Substantive law is about the rights and duties we live by.

Procedural Law:

- Focus: Procedural law is about the rules we follow when there's a legal problem.

- What It Does: It guides how we go about resolving issues or disputes and what steps to take.

- Examples: Think of it as the "how" of the law – rules about going to court, presenting
evidence, and getting a decision belong to procedural law.

- In a Nutshell: Procedural law is about the steps we take when there's a problem with our rights
or duties.

Key Difference:

- Substantive is WHAT: It's about the actual rules that say what you can and can't do.

- Procedural is HOW: It's about the steps and processes you follow when those rules are
challenged or applied.

Simply put, substantive law sets the legal standards, while procedural law governs the
processes through which these standards are implemented and enforced in the legal arena. Both
are equally important and one could not be applied effectively in the absence of the other.

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Examples of substantive laws

Examples of substantive laws that illustrate the regulation of conduct, rights, and legal
relationships:

1. Criminal Law:

- Example: The Indian Penal Code (IPC)

- The IPC defines various criminal offenses, such as theft, murder, fraud, and their
corresponding punishments. It outlines the rights of individuals as victims and the duties and
liabilities of those accused of committing crimes.

2. Contract Law:

- Example: The Indian Contract Act

- This law defines the rights and duties of parties entering into contracts. It establishes the
legality of agreements, conditions for a valid contract, and the remedies available in case of
breach.

3. Family Law:

- Example: The Hindu Marriage Act

- Family laws like the Hindu Marriage Act govern matters related to marriage, divorce, and
maintenance. They define the legal relationships between spouses and outline the rights and
obligations associated with family matters.

4. Property Law:

- Example: The Transfer of Property Act

- This law regulates the transfer of property rights. It defines the rights of property owners, the
duties associated with property transactions, and the legal implications of property transfers.

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5. Tort Law:

- Example: Law of Torts

- Tort laws define civil wrongs, such as negligence, defamation, and trespass, and the
corresponding rights and liabilities of individuals. They provide a legal framework for seeking
compensation for harm caused.

7. Labor Law:

- Example: The Industrial Disputes Act

- Labor laws regulate the rights and obligations of employees and employers. The Industrial
Disputes Act, for example, defines the legal procedures for resolving disputes between workers
and management.

These examples represent various substantive laws that cover different aspects of legal
relationships, rights, and obligations in India.

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Examples of procedural laws

Examples of procedural laws that govern the processes followed by courts in hearing and
determining cases:

1. Civil Procedure Law:

- The Code of Civil Procedure (CPC)

- The CPC outlines the procedures to be followed in civil cases. It includes rules for initiating
lawsuits, presenting evidence, conducting trials, and obtaining judgments in civil disputes.

2. Criminal Procedure Law:

- The Code of Criminal Procedure (CrPC)

- The CrPC establishes the procedures for the investigation and trial of criminal offenses. It
governs the arrest process, bail, presentation of evidence, examination of witnesses, and the
overall conduct of criminal proceedings.

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 Courts and Hierarchy

The judicial system in India is hierarchical, with a well-defined structure of courts at

different levels. The hierarchy of courts in India can be broadly categorized into three main
levels:

1. Supreme Court: The Supreme Court is at the apex of the Indian Judiciary. It has original,
appellate, and advisory jurisdictions. It is the ultimate interpreter of the Constitution and the laws
of the land.

2. High Courts: Below the Supreme Court are the High Courts, which exist in each state. They
have original, writ, appellate, and supervisory jurisdictions. High Courts are the highest courts of
adjudication in the state.

3. District Courts and Additional District Courts: These are the lower courts that function
under the direct superintendence of the High Courts. They deal with civil and criminal matters in
their respective districts.

- Civil Courts: These include the Court of Civil Judge (Senior Division), Court of Civil
Judge (Junior Division), Munsiff courts and Court of small causes.

- Criminal Courts: These include the Sessions Court, Judicial Magistrate Court (First
Class) , and Judicial Magistrate Court (Second Class)

This hierarchical structure of courts in India ensures a systematic approach to justice

delivery, with the opportunity for appeals and reviews at higher levels.

It's important to note that all courts function under the rule of law, and their powers and
jurisdictions are defined by the Constitution of India.

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 Identification of Sources of law and Case law

What is the importance of precedent as a source of law?

Precedent, a previously decided case that serves as an authority for deciding future cases
involving identical or similar facts, legal issues, or disputes, is one of the most important sources
of law in common law countries like India.

Here are some reasons why precedent is important:

1. Certainty and Consistency: Precedent plays a pivotal role in ensuring certainty and
consistency in the application of law. When courts follow precedents, it promotes predictability
and allows parties to structure their activities knowing the legality and consequences.

2. Rule of Law: The expectation that courts will treat similar cases alike, and not decide cases
randomly, is fundamental to the rule of law.

3. Flexibility: Precedent allows flexibility in law by allowing judges to distinguish between

factual scenarios and lay down new principles.

4. Development of Law: Through the gradual process of distinguishing between facts, precedent
enables orderly development of law.

5. Time and Convenience: Precedents save time and increase convenience as a question once
decided is settled, saving the time and labor of judges and lawyers.

6. Preparation of New Statutory Laws: Precedents help to prepare new statutory laws and
adjust according to the changing conditions of the society.

In essence, precedents are considered an important source of law due to their role in
promoting certainty, consistency, predictability, and the orderly development of law.

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 Identifying legal terms from the passage and explaining their meaning

Passage 1:
“Constitution is the supreme law of the land. It determines the structure, powers and functions of
various organs of the State. It also guarantees certain fundamental rights to the citizens and to
aliens also in some cases. Some people call the constitution, a lawyer’s paradise”.

Answer: The passage contains legal terms related to constitutional law.

Here are five legal terms from the passage along with their meanings:

1. Constitution:

- The Constitution is the fundamental and supreme law of a country. It establishes the
framework of the government, defines the powers and functions of its various branches, and
often includes Fundamental Rights. It serves as the highest legal authority, and all other laws
must conform to its provisions.

2. Supreme Law of the Land:

- Describing the Constitution as the supreme law of the land signifies that it holds the highest
legal authority, and all other laws, governmental actions, and individuals must comply with its
provisions. It implies that the Constitution takes precedence over any conflicting laws or actions.

3. Organs of the State:

- Organs of the State refer to the various branches or components of the government, such as
the executive, legislative, and judicial branches. The Constitution typically outlines the structure,
powers, and functions of these organs, establishing the framework for the functioning of the
government.

4. Fundamental Rights:

- Fundamental rights are basic rights and freedoms that are guaranteed to the people by the
Constitution. These rights protect individuals from arbitrary actions of the government and
ensure certain liberties, such as freedom of speech, religion, and equality before the law.

5. Aliens:

- In a legal context, aliens refer to individuals who are not citizens of the country in question.
The passage mentions that the Constitution guarantees certain fundamental rights not only to
citizens but also, in some cases, to aliens. This recognition underscores the idea that basic rights
may extend to non-citizens within the country.

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Passage 2:
"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 contain shall effect any law in force in India, and not hereby
expressly repealed, by which any contract is required to be made in writing or in the presence of
the witnesses, or any law relating to the registration of documents. "

Answer: The passage contains legal terms related to the formation and validity of contracts.
Here are five legal terms from the passage along with their meanings:

1. Agreements:

- Agreements refer to the mutual understanding or arrangement between two or more parties.
In a legal context, an agreement becomes a contract when certain conditions are met.

2. Free Consent:

- Free consent implies that the parties involved in the agreement or contract willingly and
voluntarily agree to the terms without any coercion, undue influence, fraud, misrepresentation, or
mistake.

3. Competent to Contract:

- Parties must have the legal capacity to enter into a contract. Competence to contract means
that the individuals involved are of sound mind, not minors, and not disqualified by law from
entering into a contract.

4. Lawful Consideration:

- Lawful consideration involves something of value (e.g., money, goods, services) that is
promised, exchanged, or given by one party to another as part of the contract. It must be legal
and not against public policy.

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5. Lawful Object:

- The object of the contract must be lawful. In other words, the purpose or goal of the contract
must not involve anything illegal, immoral, or against public policy. The contract must be
formed for a purpose that is recognized and permitted by law.

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Passage 3:

“Sale is a transfer of property in exchange for a price paid or promised or part paid and part
promised. Price is an essential ingredient of sale. If the consideration is other than money, it
cannot be called sale. Generally it is the duty of the purchaser to prepare the conveyance or sale
deed”.

Answer: The passage contains legal terms related to the concept of a sale and the transfer of
property. Here are five legal terms from the passage along with their meanings:

1. Sale:
- Sale refers to the legal transfer of property from one party (the seller) to another party (the
purchaser) in exchange for a price. It involves the passing of ownership rights from the seller to
the buyer.

2. Transfer of Property:
- Transfer of property involves the change of ownership or rights in a property from one
person to another. In the context of the passage, it specifically relates to the legal process by
which the ownership of property is moved from the seller to the purchaser through a sale.

3. Price:
- Price, in the context of a sale, is the consideration paid or promised by the purchaser to the
seller in exchange for the transfer of property. It is a fundamental element of a sale transaction
and distinguishes it from other types of transfers.

4. Consideration:
- Consideration refers to something of value exchanged between parties in a contract. In the
context of a sale, the consideration is the price paid or promised by the purchaser to the seller for
the transfer of property. It is an essential element for a transaction to be considered a sale.

5. Conveyance or Sale Deed:

- A conveyance or sale deed is a legal document that formally transfers the ownership of
property from the seller to the purchaser. It is usually prepared by the purchaser and contains
details of the sale transaction, including the agreed-upon price, terms, and conditions of the sale.

In summary, the passage discusses the legal aspects of a sale, emphasizing the importance of
consideration (price) and the role of a conveyance or sale deed in documenting and formalizing
the transfer of property.

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 Importance of specific terms in relevant enactments

Explain the importance of the following terms in relevant enactments.

1. Damage and Damages
2. Void and Voidable
3. Compensation and Solatium

1. Damage and Damages:

 'Damage' refers to the loss or harm suffered by a person due to the wrongful act of
another or negligence of another party.
 'Damages' is the monetary compensation awarded to the person who has suffered the
damage.
 Damages are a form of compensation or relief.
 Damages can be liquidated, or unliquidated.

o Liquidated damages are a predetermined, fixed amount of compensation agreed

upon by the parties in a contract. These damages are stipulated in the contract
itself, making the calculation and amount known in advance, usually in case of a
breach of contract.
o Unliquidated damages are not predetermined or specified in a contract. The
amount of compensation is not fixed beforehand but is determined by a court or
through negotiation based on the actual losses suffered by the injured party.
 Example : Consider a scenario involving the purchase of goods:
o Damage:
 Suppose you ordered a special item for an event, and the supplier fails to
deliver it on time. The harm you suffer, like the inconvenience, potential
loss of business, or the need to find an alternative, is the damage.
o Damages:
 If you decide to take legal action, the court might award you monetary
compensation (damages) to cover the costs of the inconvenience, loss of
business, or any other harm you experienced due to the late delivery.

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 o Liquidated Damages:
 In the contract with the supplier, there could be a clause specifying that if
the goods are not delivered on time, the supplier agrees to pay a fixed
amount, let's say Rs 500, for each day of delay. This predetermined
amount is liquidated damages.
o Unliquidated Damages:
 If the contract doesn't specify a predetermined amount for late delivery,
and you go to court seeking compensation, the court would assess the
actual losses you incurred due to the delay. The final amount would be
unliquidated damages, determined based on the specific circumstances of
the case.
 In summary, damage is the harm suffered, damages are the monetary compensation for
that harm, liquidated damages are predetermined in the contract, and unliquidated
damages are determined by a court or through negotiation based on actual losses.

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2. Void and Voidable:

 A 'void' contract is a legally non-existent agreement, rendering it legally unenforceable

from the moment of its creation.
 It lacks the essential elements of a legal contract, making it as if the contract never
existed.
 On the other hand, a 'voidable' contract is initially valid and enforceable but may be
avoided under certain conditions.
 They are defined in the Indian Contract Act 1872.

 Examples:
o Void:
 Suppose a person engages in illegal activities that are prohibited by law. In
such case:
 Void Act: Contracts that are for unlawful objects are void. An example of
this could be a contract between two individuals to engage in illegal
gambling activities that are prohibited by law.

o Voidable:
 Imagine a scenario where a person enters into a contract under threat:
 Voidable Act: If someone signs a contract because they are threatened or
coerced, the contract is initially valid but can be voided by the victim of
coercion. The person under threat or coercion has the option to either
affirm the contract or declare it void due to the improper circumstances
surrounding its formation.

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3. Compensation and Solatium:

 Compensation refers to the payment provided to a person to make up for a loss, injury,
or damage they have suffered.
 It is often a monetary award intended to restore the person to the position they would
have been in had the harm not occurred.
 Solatium is a form of compensation, but it is specifically awarded for non-economic
losses such as emotional distress, mental anguish, or pain and suffering.
 It goes beyond reimbursing financial losses and aims to provide comfort or solace to the
affected party.

Example:
Suppose a farmer's land is acquired for a public project. The government assesses the market
value of the land and determines it to be Rs 100,000.
This Rs 100,000 is the compensation offered to the farmer for the land.

Now, recognizing the emotional distress and inconvenience caused by the land acquisition, the
government decides to provide a 10% solatium.
So, the solatium would be an additional Rs 10,000 (10% of Rs 100,000).

The total amount the farmer receives is Rs 110,000, combining the compensation and solatium.

In this way, compensation addresses the objective financial value of the acquired land, while
solatium acknowledges and provides for the emotional aspect of losing the property.

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