Freedom of speech is the freedom to speak freely without restriction. The concept of freedom of expression is sometimes used interchangeably, but also all the actions that seek, receive and distribute information or despite of the medium used. The freedom to state our opinion is a vital part of our individual distinctiveness. Talking and writing about our opinions we are contributing ideas and participating in the general public. Freedom of expression is sheltered in article 19 of the United Nation’s Universal Declaration of Human Rights: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”( Universal Declaration of Human Rights). Freedom of expression is broadly accepted as a basic human right that must be available to all. Countries and organizations may set limitations on freedom of expression and speech. These limits can be a method of scheming general people. Restricting voting rights, censoring communication and skill and banning specific religious and political groups are some of the ways governments have used for controlling general public. Even there are no limitations on freedom of speech and expression in most of the counties, for special reason like for the betterment of the state, general people as well as in emergency situation in can be restricted. A contract is an agreement entered into voluntarily by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be “damages” or compensation of money. In equity, the remedy can be specific performance of the contract or an injunction. Both of these remedies award the party at loss the “benefit of the bargain” or expectation damages, which are greater than mere reliance damages, as in promissory estoppel. The parties may be natural persons or juristic persons. A contract is a legally enforceable promise or undertaking that something will or will not occur. The word promise can be used as a legal synonym for contract., although care is required as a promise may not have the full standing of a contract, as when it is an agreement without consideration.
Offer and Acceptance:
OFFER: An offer as an expression of willingness to contract on certain terms, made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed, the “offer” An offer is a statement of the terms on which the offer or is willing to be bound. It is the present contractual intent to be bound by a contract with definite and certain terms communicated to the offered. The “expression” referred to in the definition may take different forms, such as a letter, newspaper, fax, email and even conduct, as long as it communicates the basis on which the offer or is prepared to contract.
Unilateral contract: In Australian woolen Mills Pty Ltd vs. The commonwealth (1954), the High court of Australia held that, for a unilateral contract to arise, the promise must be made “in return for” the doing of the act. The court distinguished between a unilateral contract and a conditional gift. The case is generally seen to demonstrate the connection between the requirements of offer and acceptance, consideration and intention to create legal relations.
Revocation of offer: An offer or may revoke an offer before it has been accepted, but the revocation must be communicated to the offered, although not necessarily by the offer or. If the offer was made to the entire world, such as in Cargill’s case, the revocation must take a form that is similar to the offer.
Acceptance: when the person to whom the proposal is made signifies his assent to the proposal is said to be accepted. There are some types of offer which are given below:
Rules of acceptance:
Communication of acceptance: An exception exists in the case of unilateral contracts, in which the offer or makes an offer to the world which can be accepted by some act. A classic instance of this is the case of Cargill v. carbolic smoke ball co. .484 in which an offer was made to pay 100 to anyone who having bought the offer or’s product and used it in accordance with the instructions nonetheless contracted influenza. The plaintiff did so and the court ordered payment of the 100. Her actions accepted the offer – there was no need to communicate acceptance. Typical cases of unilateral offers are advertisements of rewards (e.g., for the return of a lost dog).An offer can only be accepted by the offered, that is, the person to whom the offer is made.
Death of offer: Generally death of the offer or terminates the offer. This does not apply to option contracts. The offer cannot be accepted if the offered knows of the death of the offer or. In cases where the offered accepts in ignorance of the death, the contract may still be valid, although this proposition depends on the nature of the offer. If the contract involves some characteristic personal to the offer or, the offer is destroyed by the death.
Counter Offers: If the offered rejects the offer, the offer has been destroyed and cannot be accepted at a future time. A case illustrative of this is ”Hyde v. Wrench” (1840) 49 E.R. 132, where in response to an offer to sell an estate at a certain price, the plaintiff made an offer to buy at a lower price. This offer was refused and subsequently, the plaintiffs sought to accept the initial offer. It was held that no contract was made as the initial offer did not exist at the time that the plaintiff tried to accept it, the offer having been terminated by the counter offer.
It should be noted that a mere inquiry (about terms of an offer) is not a counter offer and leaves the offer intact. The case ”Stevenson v. McLean” (1880) 28 W.R. 916 is analogous to this situation.
“A consideration is some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.“A consideration is an act or forbearance of one party or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable.”
In order to be valid, the parties to a contract must exchange something of value. In the case of the sale of a car, the offeree receives something of value in the form of the car, and the offeror receives money in return. While the validity of consideration may be subject to attack on the basis that it is illusory or that there is a failure of consideration, these defenses will not let a party to a contract escape the consequences of bad negotiation. For example, if a offeror enters into a contract to sell a Lancer EXi for BDT 20lac, and later gets an offer from somebody else for taka 30lac, the offeror can’t revoke the contract on the basis that the car was worth a lot more than he bargained to receive. There are four legal maxims that apply to consideration:
- Consideration must move from the promised.
- Consideration need not move to the promisee.
- Past consideration is not good consideration.
Consideration must be sufficient, but courts will not weight the adequacy of consideration. For instance, agreeing to sell a car for a penny may constitute a binding contract. All that must be shown is that the seller actually wanted the penny. This is known as the peppercorn rule. Otherwise, the penny would constitute nominal consideration, which is insufficient. Parties may do this for tax purposes, attempting to disguise gift transactions as contracts.
Transfer of money is typically recognized as an example of sufficient consideration, but in some cases it will not suffice, for example, when one party agrees to make partial payment of a debt in exchange for being released from the full amount.
Performance or Delivery:
In order to be enforceable, the action anticipated by the contract must be completed. For example, if the offered pays the BDT 30lac purchase price, he can enforce the contract to require the delivery of the car. But, unless the contract provides that delivery will occur before payment, the offeree may not be able to enforce the contract if he does not perform by paying the BDT 30lac. Similarly, again depending upon the contract terms, the offeror may not be able to enforce the contract without first delivering the car. In a typical “breach of contract” action, the party claiming the breach will declaim that it performed all of its duties under the contract, whereas the other party failed to perform its duties or obligations.
Additionally, the following elements may factor into the enforceability of any contract:
It is implicit within all contracts that the parties are acting in good faith. For example, if the seller of the Galaxy SII knows that the buyer thinks he is purchasing a mobile iPhone, but secretly intends to sell the buyer a Galaxy SII, the seller is not acting in good faith and the contract will not be enforceable.
No Violation of Public Policy:
In order to be enforceable, a contract cannot violate public policy. But, the public policy can be shifted. Traditionally, many states refused to honor gambling debts incurred in other jurisdictions on public policy grounds. However, as more and more states have permitted gambling within their own borders, that policy has mostly been abandoned and gambling debts from legal enterprises are now typically enforceable.
It can be very difficult to prove that an oral contract exists. Absent proof of the terms of the contract, a party may be unable to enforce the contract or may be forced to settle for less than the original bargain. Thus, even when there is not an opportunity to draft up a formal contract, it is good practice to always make some sort of writing, signed by both parties, to memorialize the key terms of an agreement. At the same time, under most circumstances, if the terms of an oral contract can be proved or are admitted by the other party, an oral contract is every bit as enforceable as one that is in writing. There are, however, “statute of fraud” laws which hold that some contracts cannot be enforced unless reduced to writing and signed by both parties.
Types of contract:
There are basically three types of contracts.
- Express Contract
- Implied Contract
- Quasi Contract
Express Contract is a contract in which the agreement of the parties has been expressed in words, either in oral or written form. An exchange of promises in which the terms by which the parties agree to be bound are declared either orally or in writing, or a combination of both, at the time it is made. Whether oral or written, the contract must manifest a mutual intent to be bound expressed in a manner capable of being understood, and include a definite offer, unconditional acceptance and consideration.
An express contract is differs from implied contract only in the mode of establishing assent and the mode of proof required; the distinction involves no difference in legal effect. Both forms of contract require mutual assent and a meeting of the minds, but an express contract is proved by an actual agreement where an implied contract in fact is proved by circumstances and the conduct of the parties. An acceptable alternative way of describing an express contract is; a contract in which the terms have been agreed upon either orally or in writing.
For example, the landlord presents the tenant with a preprinted lease on the apartment and the tenant wants and agrees to the terms and signs it. This is an express, written contract.
An Implied Contract is a contract where the agreement of the parties is indicated by their conduct. Acceptable alternative ways of describing an implied contract are; a contract in which the performance of the parties infers agreement. The parties indicate their agreement to a contract by their actions, rather than by making a promise.
For example, a transporter regularly ships a garment owner’s goods and there is no written contract between them but it acts like a written agreement.
A quasi contract is an obligation that is imposed by the courts to avoid injustice or unjust enrichment. Acceptable alternative way of describing a quasi-contract is, an implied-in-law contract imposed by the courts to prevent injustice. We can also say that, a quasi-contract is a special form of contract that lacks mutual assent of the parties but which is imposed on the parties by the courts to avoid injustice. For example, a supplier supplies to the buyer bad goods and the buyer refuses to pay as there is no contract exists. Therefore, the supplier goes to the court and claims for his payment. Then the verdict of the court allows the buyer to pay the supplier. This is an example of Quasi Contract.
Statute of Frauds:
A “statute of frauds” requires that certain contracts be in writing, and that they be signed by all parties to be bound by the contract. Although there can be significant variation between jurisdictions, the most common types of contracts to which a statute of fraud applies are:
- Contracts involving the sale or transfer of land
- Contracts to answer for the debt or duty of another
- Contracts that, by its terms, cannot be completed within one year.
- Certain contracts for the sale of goods, under the Uniform Commercial Code
Typically, to satisfy the requirements of the statute, the writing must identify the contracting parties, recite the subject matter of the contract such that it can reasonably be identified, and present the essential terms and conditions of the parties’ agreement. Even without respect to the Statute of Frauds, it is good practice to reduce the essential terms of any contract to a signed, written agreement. Even when a Statute of Frauds does not apply to an oral contract, it may be very difficult to prove and enforce the contract in the absence of a written agreement.
Right to freedom of expression and speech is our fundamental right. This is the fundamental right in most of the countries. But most of the people of Bangladesh are not aware about the right. For certain thing the right can be restricted like in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to any offense. In the emergencies, it can also be restricted. From the above explanation we can easily conclude that, in a contract willingness of the all parties is required. Otherwise it will not be considered as any contract. To make a contract an offer or should place any offer to an offeree and the offeree willingly has to accept the offer. In the contract there should be a mutual consent between the parties otherwise the contract will not be a valid contract. Also it should be a lawful contract or the contract must not be contradictory with the state or region law. If the contract is not lawful then it will void the contract. The contract can be in any form, formal or casual, written or oral but must be regular and with a set of certain regular activities. Therefore, we can easily conclude with the statement that, a contract is a legal relationship between two or more people or parties who accept or refrain from doing certain act.
- Thomson J. Harron, Business law. Allyn and Bacon, Inc.1981.
- Muhammad Akramul Haque, Law of Contract. First edition Law Lyceum, Dhaka, Bangladesh.
- Avter Sing, Company Law.14th Edition Eastern Book Company, Lucknow.2004.
- Mulla, Indian Contract Act. 11th Edition N.M. Tripathi Private Limited, Bombay.2004.