super condensed 2

types of contracts

service

• obligation of means= activity or effort

• focus on effort and dilligence

• no guaranteed outcome

• liability for lack of dilligence

work

• obligation of result

• focus on final product

• outcome required

• liability for failure to achieve result

service

one party provides a service in exchange for payement

• focus on proper and diligent performance not result

• lawyers, doctors, cleaners

• Digital services, streaming, software

characteristics

• consensual= binding upon agreement no formalities unless law says so

• bilateral= mutual obligations

• onerous= economic value exchanged

professional obligations

• obligation of means

• must exercise skill and dilligence

• must follow lex artis= technical ethical and industry standards

• failure= negligence liability eg Mal practice

• no guarantee of result

price

• does not need to be fixed in advance

• must be objectively determinable not left to will of provider

• hourly rate, market rate, professional tariffs

termination

• normal= completion of task or expiry

• unilateral for indefinite contracts

  • client can terminate anytime with compensation for work done

  • provider only for just cause and wrongful term=damages

• death of either party= based on personal trust and skill so ends upon death

  • if not intuit personae does not end heirs can continue

work contracts

one party undertakes to produce a specific result for a price ie furniture repairs tailoring

• regulated by cc and building regulation act loe

olbigations of the contractor cc

execute work properly

• skill care dilligence

• follow contract and technical specs

• defects= breach obligation of result

complete on time

• deadlines are binding

• delay=liability for damages

provide materials

• can be labour only or labour+materiald

obligations of contractor in construction loe

• follow approved project

• comply with regulations

• ensure safety

• liable for defects from non compliance with spec

obligations of the client cc

pay the price

• lump sum or unit based

• cannot be changed unilaterally

  • only be changed if expressly agreed in contract based on increase in labour

right of retention

• can retain object until paid

subcontractors

• can claim directly from client only up to unpaid amount - no claim I contractor fully paid

acceptance of work

• express formal approval

• implied use without object

• triggers right to payement and start of defect liability period

risk allocation

before delivery the contractor bears the risk as they own the product

after delivery the client bears the risk

• if the client refuses acceptance risk shifts to them

• client supplies defective materials client bears risk

termination

general breach of contract

• remedies of specific performance termination or damages

client withdrawal

• can terminate without reason

• must compensate for work completed and costs and lost profits

death of contractor

• if personal skill essential the contract ends and work done and costs compensated to heirs

• if not continues through heirs and staff

construction defect liability

pre may 2000= civil code

• 10 year liability for ruin

  • partial, total functional potential

• contractor architect and other professions

• liability can be indidual for proven acts

• no automatic joint liability must be proven on a case by case basis proven= harder than loe

• lack of precision led to loe

post may 2000=loe

• new buildings or if building permit post 6 may

• liability periods cannot be reduced by contract and start from acceptance of work

• 10 years structural, 3 years habitability, 1 year finishing =more certainty than ruin

• indiually liable for their own fault requiring proof of causation

• joint and several liability when multiple agents are involved or the cause is unclear

• developer is always joint and severally liable as central coordinator

  • subsequent purchasers can sue developer directly

• more legal certainty in India and more consumer protection for joint