DISCUSS THE RELEVANT AND IRRELEVANT LEGAL AREAS IN LEGALLY BINDING CONTRACT
1. Introduction:
Law is a system of rules and regulations, which is approved by the constitution of a nation. “Contract” is a very important aspect of law. It is mentioned in Section 2(h) of the Indian Contract Act, 1872, as- The agreement enforceable by law is a contract.[1] All contracts are agreements, but all agreements are not contracts. However, there are legally binding contracts as well. Legally binding contract is the formal contract approved by law with the agreement of the both parties. The governing Act in Bangladesh in the field of law of contract is the Contract Act, 1872. The Preamble to the Act states that the objects of the Contract Act, 1872, are-
i. To define certain parts of the law relating to contracts, and
ii. To amend certain parts of the law relating to contracts.
It is about the amendment of certain parts of the law relating to contracts. The Contract Act, 1872, does not cover the case with which the Court has to deal; the Court is bound to follow the English Common Law and that is the scope of the contract. Today there are few types of contracts which are not governed by special legal rules and are subject to particular public law provisions. For making a contract, proposal and acceptance is also very important for both parties.[2] The institution of law and state are distant from the world of home and work. However, we may have legally binding contracts in our family or social matters. A legally binding contract is an agreement, which is consciously made and certain actions are either required or prohibited and both sides must know what they are agreeing to. In the context of our society, family and social value is very important. So, we are very conscious about family and social matters. There are so many issues that are necessary in family matters to make legally binding contracts to avoid unwanted circumstances.
2. Relevant and Irrelevant Legal Areas:
When we talk about the Legally Binding Contracts in family or social matters, so many relevant areas come to our mind. Normally, we think that, we don’t need to make any legally binding contracts with our family members or surroundings. Now, I am going to look at these contracts and their relevant and irrelevant areas:
a. Marriage:
Marriage is the foundation of all civilized communities and it is the oldest institutions in the history of human civilization. Considerable attention has been paid by all systems of law to the principles, rules and regulations to the contract of marriage. IT is the legally and socially sanctioned contract between two persons of the opposite sex. According to, Section 2(h), Contract Act, 1872, as adapted in Bangladesh, it involves an agreement between the husband and the wife, so that it must satisfy all the basic conditions of a contract.
Here, a very important thing is the differences between the marriages of different religions. On the other hand, there are some very irrelevant facts in the context of marriage contracts. Let’s look at these-
· According to Muslim Family Law, the contract of marriage follows the declaration of The Holy Quran. Islam considers marriage to be a very sacred act and a step towards a better.[3] Thus Islamic marriage is a civil contract and not a sacrament like the Hindu marriage. However, today Hindus also legalized their marriages except the Bengali Hindus. For those Hindus, It is a sacrament, not a contract.[4] Even, Christians and Buddhists also have the legally binding contract for marriage. So some Hindu marriages are totally irrelevant with the context of legal marriage.
· Marriage of a major virgin girl without her consent is not lawful.
· A Qadi and presence a witness is essential in Muslim marriage.
· Marriage with a non-Muslim is unlawful according to Islam. In Hindu marriage, the parties should belong to the same caste and religion.
· According to Quran, a Muslim widow can marry again. Shastras do not allow the marriage of a Hindu widow except in some special cases. But, the re-marriage of Hindu widow is now legalized by the Hindu widow’s Re-marriage Act-1856.
· In Bangladesh, marriage between same sexes is not legal, though couple of years back, India has legalized this.
- The Special Marriage Act, 1872 (Act no.III of 1872)
b. Dissolution of Marriage, Dower and Child Custody:
A marriage is a contract between a male and a female. This contract is made for lifetime and dissolved by death or either husband or wife. This is natural dissolution over which no party has any control. Annulment of the marriage is another procedure to procedure to declare the marriage invalid. However, in the context of our society, the most common way of dissolution of marriage is “Divorce”.
According to the Muslim Law the dissolution of marriage can take place in following modes:
i. By Death of Parties:
At the death of the wife, husband can remarry immediately, but the widow has to wait for a definite period called “Iddat” (Four months ten days from the death). But if she is pregnant, it shall expire. In this case, the widow will have the custody of child or if the wife dies then the husband will have the custody. The children will get the property of their father.
ii. By the act of the parties:
There is several kind of Talaque in Islam, but the major two are Oral form and written form. However, today, the oral form is not the legalized from. But, if the husband gives divorce to wife he has to pay the dower to his wife and if the wife is responsible for the divorce then the husband doesn’t need to pay at all. So, in Islam, Mahr is very important, but in other religion it is not necessary. If the child is not matured, then the mother will get the custody for first few years and after that the father will get it. In some cases, the child is asked to whom he wants to live with.
c. Will, Gift and Donation:
Will, gift and donation to some extent overlapped together. Will varies from religion to religion, but gift varies from person to person. All these things are kind of legally binding contracts of family and social matters.
i. Will:
“Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. This act of Bangladesh is called Succession Act, 1925.[5]Till 2005, a person could make oral will before his death, but now it is not a legal way. In our country, generally, we follow the Muslim law. That means, children will get father’s property and the brothers will get double of the sisters. There are some exceptional as well. Normally, the family members get the property of the testator. A major principle of the will is, it becomes effective only after the death of the testator. The testator also must have some sort of qualifications to legalize the will.
Islamic Law of Inheritance:
Islamic law of inheritance is the most exact and scientific law and Muslim jurists laid great importance on the law of inheritance. Muslim jurists recognized only three sources of inheritance, The Holy Quran, The Hadith and Ijma. Here, the inheritance opens at the time of death and the son gets double of a daughter. The persons excluded from the right of inheritance are:
· Homicide
· Difference of religion
· Illegitimacy
· Alien enemy
· Slavery
However, Sunni or Shia Law of Inheritance is different in this context.
Hindu Law of Inheritance:
Two systems of inheritance prevail among the Hindus: the Mitakshara system and the Dayabhaga system. Normally, females do not get any property, but According to The Hindu Women’s Right to Property Act 1937, the widow along with the sons is entitled to the same share as the son and in the joint family the widow shall take the place of her husband.[6] The persons excluded from the inheritance are:
· According to Hindu law, females are generally excluded from inheritance.
· Irreligion
· Moral issues (e.g. Father’s enemy)
· mentally or physically disorder people
Invalid will:
a. If the testator is forcefully make the will or mentally sick or a murderer or an enemy of the nation then the will becomes invalid.
b. According to Muslim law, a testator must be a Muslim, man of sound mind and solvent. A Muslim can validly make Wasiat in favor of any person, but if a non-Muslim who is stated of an enemy state is not valid.
c. A bequest in future, unborn child, death of legatee etc. all is void.
ii. Gift:
In the case of will, it is not essential that there must be the existence of property in the time of making it. But, in the case of gift, there must be the existence of the gift at the time of making it. Gift is something that a person can willingly give it to anyone at anytime. But, a person cannot legally give a gift someone who doesn’t exist at all, for example, an unborn child, a baby in the mother’s womb, a dead person etc. In Hindu Law, if a husband wants to give anything to his wife such as jewelry, property or anything else after his death; he has to give that gift legally. Because, according to Hindu Law, a widow will not get husband’s property unless the husband gave her before death as a gift. So, this is one kind of legal gift.
iii. Donation/Trusts:
A trust of immoveable property must be declared by a non-testamentary instrument in writing, signed by the author of the trust or the trustee and registered.[7]Donation is that, a person willingly gives his property to a charitable trust or any needy person with the acknowledgement of his family members. This lies under The Charitable and Religious Trust Act, 1920.[8] He can’t give any donation of a property if he already makes any will of that particular property.
d. Adoption:
Adoption is a process of having another’s child legally pretending as own parents. There are some essentials for valid adoptions;
· The adopter should legally capable of taking in adoption
· The person giving in adoption must be legally competent to do so
· The adoptee should be lawfully capable of being taken in adoption
· Actual giving and taking
Irrelevant facts:
According to Vasistha, “For a sonless man there is no heavenly region” and that is the purpose of adoption in Hinduism. Hindu Shastras mention twelve kinds of sons for adoption. But, According to the Muslim law, a person cannot adopt a son, instead of daughter. However, without any legal documents a person cannot adopt anyone’s child.
3. Conclusion:
These are some of the legally binding contracts in our family or social life. We can’t think about our social life without these things. However, for a safe and secure social life we need to make these bindings legal. So, it is very important to legalize our family and social life. The registration of property or a company legal binding contract is totally irrelevant to these contracts. So, we have different Acts for every legal contracts regarding to family or social matters and we should follow them.
References
Books and Articles:
1. Chakraborti V. Emperor(1937) 2.Cal.221
2. Faiz-ud-din, M (2009) A TEXT BOOK ON ISLAMIC LAW, Dhaka
3. Haque, M (2007) Law of Contract, Dhaka
4. Routh, S (2009) Elements of Hindu Law, Dhaka
5. Singh, A (2006) Textbook on LAW OF CONTRACT and Specific Relief, Lucknow
Dictionary:
6. Business Dictionary from http://www.businessdictionary.com/definition/legally-binding.html
Encyclopedia:
7. Wikipedia from http://en.wikipedia.org/wiki/Annulment
[1] See Avtar Singh’s Law of Contract and specific relief, chapter 1,page1
[2] See Muhammad Ekramul Haque’s Law of Contract, Preamble and the Formation of a Contract,page-27
[3] Al-Quran, 7:189
[4] See S.K Routh’s Elements of Hindu Law, p.19
[5] See http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=138
[6] See S.K.Routh’s Elements of Hindu Law, p.66
[7] Trust Act. Sec.5