Chapter- 2
Chapter- 2
Contracting Parties and Proposal and Consent
3. Person competent to Conclude Contracts :
(1) Any person other than those mentioned below may be competent for concluding a contract;
(a) Those who have not attained 16 years of age.
(b) Those who are of unsound mind.
(2) Notwithstanding anything contained in Sub-section (I) any person not qualified to enter into a specific contract under the prevailing law shall be deemed to be incompetent to conclude that contract. ,
(3) The guardian of a person who is incompetent to conclude a contract under Section 1 may conclude a contract on his/her behalf in his interest.
(4) Notwithstanding anything contained elsewhere in this Section, in case the prevailing law provides for a provision even to persons who are incompetent under this Act to conclude a contract on any specific matter, they shall be deemed to be qualified to conclude a contract on such that matter accordingly.
4. Parties to be autonomous : The parties to contract, subject to this Act shall be free to choose the form and content of contract and to determine consideration and its quantum, the terms and conditions of the contract and the nature of the remedy in the event of its violation, as well as to determine the measures for resolving disputes under the contract.
5. Contract to be deemed to have been concluded : A contract shall be deemed to have been concluded once the person to whom a proposal has been presented by another person communicates his/her consent thereto.
6. Place of contract :
(1) The place where the person advances a proposal expecting to receive consent shall be deemed to be the place where the contract has been concluded
(2) In case the place has not been specified under Sub-section (1), the place where the offerer received consent shall be deemed to be the place where the contract has been concluded.
7. Processes of proposal and consent to be deemed completed:
(1) The communication of a proposal shall be deemed to be completed when it comes to the knowledge of the person to whom it is made.
(2) In case the offerer receives a notice of consent to the sent to him/her by the person to whom he/she had sent a proposal, the process of consent shall be deemed to have been completed in the case of the offerer, and in case the offerer is noticed that the consent has been given in the proposal the process of giving consent shall be deemed to have been completed in the case of the proposed person.
(3) The person who has been presented with a proposal shall be deemed to have given his/her consent to it even if he/she has not done it directly to the offer in case he/she compiles with the term and conditions mentioned in the proposal, or accepts any consideration, benefit or service mentioned in the proposal or expresses his/her consent in any other form.
(4) In case the offerer has mentioned in the proposal that he/she would deem the proposal to have been accepted unless he receives a notice of refusal within a specified period, the proposal shall not be deemed to have been accepted in case a notice of refusal has been sent within that- period.
8. Proposal or Consent may be cancelled :
(1) The offerer may cancel his/her proposal through a notice. Provided that, in case the offerer has received from the person whom he has presented a proposal a notice to the effect that he/she has approved the proposal before receiving a notice of the cancellation of the proposal, the proposal shall not be deemed to be cancelled.
(2) The person to whom, a proposal has been presented may cancel proposal through a notice. Provided that, the consent shall not be cancelled in case the offerer
has received the notice of consent before receiving the notice of cancellation of consent.
(3) The person who has sent a notice expressing his/her refusal of a proposal may again send a notice expressing his/her consent to the proposal. Provided that, in case the notice of refusal reaches first out of the notices of refusal or consent the contract shall not be deemed to have been concluded. In case the notice of consent reaches first; the contract shall be deemed to have been concluded.
(4) In case the notice mentioned in Sub-section (1) has been sent after sending the proposal, or the notice mentioned in Sub-section (2) has been sent after sending a notice of consent, or in case a notice has been sent under Sub-section (3) after sending a notice of refusal shall not be deemed to have been concluded if the concerned person receives such notices at the same time.
9. Proposal to be deemed cancelled: A proposal shall be deemed to be cancelled in any of the following circumstances:
(a) In case the offerer has proposed that the notice of consent to the proposal be given to him/her within a specified period, and the offerer does not receive the notice of consent given by the person to whom the proposal has been presented within the period.
(b) In case the period for sending a notice of consent is not specified as mentioned in Clause (a), and the person to whom the proposal has been presented does not furnish a notice to the proposer within a reasonable period.
(c) In case the offerer dies or loses his senses before receiving consent after presenting the proposal.
(d) In case the proposal is cancelled as mentioned in Section 8.
(e) In case the person to whom a proposal has been presented dies or loses his/her senses after giving his/her consent but before the offerer receives the consent.
(f) In case the person to whom a proposal has been presented accepts it after altering any particular contained in the proposal or attaching any condition thereto.
(g) In case a proposal has been presented subject to the condition that the person to whom the proposal has been presented has to do anything or fulfill any condition before accepting the proposal, and her/she accepts the proposal without doing that work or fulfilling that condition.
10. Contract according to proposal presented before the public :
(1) In case any person, by means of an advertisement, advances a proposal in public to the effect that he/she will pay a specific prize or any person for performing any work specified in the advertisement, and incase any perso the work as mentioned in the advertisement, the advertiser shall pay the specific remuneration to that person.
(2) In case the work mentioned in Sub-section (2) is performed by one or more persons, only the person who has performed the work first shall be paid prize. Provided that, in case two or more persons have performed the work mentioned in the proposal at the same time, all of them may share the prize among themselves. In case the prize can not be shared, the proceeds of the sale of the same shall be equally distributed among them.
(3) In case a specific period has been prescribed for performing the work as per the advertisement published under Sub-section (1), the proposal, mentioned in the advertisement shall be deemed to have been cancelled immediately after the expiry of that period.
(4) A proposal advanced under Sub-section (2) may be cancelled through the medium through which it was published.
(5) Notwithstanding anything contained in Sub-section (4), in case anyone has, performed the work mentioned in the advertisement published under Sub – section (1) before the publication of a notice of cancellation of the proposal, he/she shall be paid the prize mentioned in the advertisement. Provided that, the person who has performed the work as mentioned in the advertisement must have notified the advertiser about the completion of the work by the quickest possible means.
(6) In case any person has begun the work according to the advertisement published under Sub-section (1) and furnished a notice thereof to the advertise, he/she shall be paid an appropriate remuneration for the work, performed by him/her before the cancellation of the advertisement.
11. Indirect contract : Notwithstanding anything contained elsewhere in this act, a contract shall be deemed to have been concluded as follows in the following circumstances:
(a) In case a person who is incompetent to conclude a contract under this Act or other prevailing Nepal law, or any other person who is to be maintained by him/her is provided with any material, commodity or service which material commodity service paid from the property of such he/she needs and that is consistent with his social status, to have the cost of such person to the person so meeting his/her need.
(b) In case any person, who is concerned with the payment or non- payment of any amount to be paid by another person under the prevailing Nepal law makes such payment him/herself, to have that payment repaid to him/her from the property of the person who is actually under obligation to make the payment.
(c) In case any person gives anything to another person, or employs him/her in any work, to pay the appropriate cost or remuneration.
(d) In case any person keeps under his/her personal possession any property belonging to another person that may be kept as such under the law, to keep that property as a bailment property.
(e) In case any person pays any amount (to any person) by mistake, to refund the same.
12. Contingent contracts :
(1) In case a contract has been concluded to performing or not to perform any work if any event happens in the future, the contract shall not create any liability until such event happens.
(2) In case a contract has been concluded subject to the condition that it shall be deemed to have been concluded in case person performs any specified work in the future, no liability shall be deemed to have emerged from that contract if such person does anything in such a manner as not to perform that work or acts in such a manner that the work can not be performed.
(3) In case a contract has been concluded to perform or not to perform any work if any uncertain event does not happen in the future, liability under that contract shall emerge only after the happening of that event becomes impossible.
(4) In case a contract has been concluded with a provision to perform or not to perform any work if any event happens within a specified period in the future, the contract shall be deemed to have become invalid after the happening of that event becomes impossible within the specified period or after the expiring of that period.
(5) In case a contract has been concluded with a provision to perform or not to perform any work if any event does not happen within a specified period in the future, liability under such contract shall emerge if that event does not happen within that period or if it becomes certain that the event will not happen within that period.