Contract Act, 2056 (2000)


Published: 2000

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Contract Act 2056 (2000) 1
CONTRACT ACT 2056 (2000)
Date of Authentication and publish :
Ashad 3, 2057 (june 17, 2000)
1. The Act Amending Some Nepal Acts, 2064 2064.5.9

An Act Made to Provide for legal provisions on contract
Preamble : Whereas it is expedient to update legal provisions concerning contract;
Be it enacted by the Parliament in the 20th year of the reign of His Majesty the
King Birendra Bir Bikram Shah Dev.
Chapter -1
Preliminary
1. Short Title and Commencement: (1) This Act may be called
Contract Act, 2056 ( 2000) '.
(2) It shall come into force immediately.
2. Definitions: Unless the context otherwise requires; in this Act;
(a) 'Contract' means an agreement enforceable by law concluded
between two or more parties for performing or not performing
any work.
(b) 'Proposal' means a proposal presented by one person to
another with the intent of obtaining his/her consent to do or
not to do any work.
(c) 'Consent' means the consent given by the person to whom a
proposal has been presented in the same meaning of that
offer.
(d) 'Consideration' means the promise made to do or not to do
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any work in return of doing or not doing of any work
mentioned in the proposal.
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 conditi s of the contract and
the nature of the remedy in the event of its violatn, 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
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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
receiving 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 considerat on, 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 hall 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
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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 i 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 f consent to the
proposal be given to him/her within a specified period, and the offerer
5
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 t e 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 pr sented 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 beenpresented 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, a d incase any person
performs 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
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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 shard, 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 de med to have been
cancelled immediately after the expiry of that period.
(4) A proposal advanced under Sub-section (2) maybe 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 anotice 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 advertis r 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 th s
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
7
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 actully 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 d emed 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
8
perform any work if any uncertain event does not happen in the future,
liability under that contract shall emerge only after he 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 ontract 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.
Chapter : 3
Void and Voidable Contracts
13. Void Contracts: The following contracts shall be void: (a) A Contract
preventing anyone from engaging him/herself in any occupation, profession
or trade which is not prohibited by prevailing law.
Provided that a contract shall not be deemed to have been concluded in
preventing profession or trade in the following circumstances:
(1) A contract preventing the seller from engaging him/herself in
a profession or trade at the time and place as mentioned in the
contract concluded between the buyer and the seller on selling
and buying of the goodwill of any trade;
(2) A contract concluded among partners in preventing their
engagement in any trade or business, other than those of the
9
partnership firm, similar to those of the partnership firm or
any other trade or business together with other competitors
belonging to the same kind of trade or business as long as the
partnership continues.
(3) A contract concluded among the partners in preventing them
from engaging in a trade or business under the partnership
firm for the specified time or place after being separated from
the partnership;
(4) A contract preventing any individual from receiving the
service of any such agency, company, firm, individual or
competitor of such agency, company, firm, or indiviual for
the specified period of time after the retirement from service
or during the service of such agency, company, firm or
individual pursuant to contract concluded by any individual
with any agency, company, firm or individual.
(b) A contract restraining marriages other than those prohibited by
the prevailing law.
(c) A contract preventing any one from enjoying the facilities
already being enjoyed by the general public.
(d) A contract seeking to prevent the legal rights of any person from
being enforced by any government office or court.
(e) A contract concluded in matters, contrary to or prohibited by the
prevailing law.
(f) A contract concluded for immoral purpose or against Public
morality or public interest.
(g) A contract which cannot be performed because the parties thereto
do not exactly know about the matter in relation to which it has been
10
concluded.
(h) A contract which is considered impossible to fulfill even at the
time is concluded.
(i) A contract which is vague as it does not provide reasonable
meaning thereof.
(j) A contract concluded by an incompetent person to conclude such
contract.
(k) A contract concluded with an unlawful consideration or
objective.
14. Voidable Contracts: (1) The following contracts may be made void by
the aggrieved party:
(a) A contract concluded through coercion:
Explanation
A person shall be deemed to have indulged in coercin if
he/she, with the objective of compelling any person, t accept
any contract against his/her will, withholds or threatens to
withhold property belonging to him/her, or threatens to
defame him/her, or takes or threatens to take any other action
in contravention of prevailing law.
(b) A contract concluded through of undue influence:
Explanation
(1) Undue influence means influence exercised by a
person upon another person who is under his/her
influence and is amenable to his/her personal benefit
or interest.
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(2) Without prejudice to the generality of Clause (1), the
following persons shall be deemed to be under the
influence of any person and amenable to his/her
wishes:
(i) A person living under his/her guardianship,
protection or custody.
(ii) a persons who cannot take care of their interest
temporarily or permanently by reason of old
age, sickness or physical or mental weakness.
(iii) A person who can be subjected to under one's
economic or ranking influences.
(c) A contract concluded through fraud:
Explanation
A party to the contract or his/her agent shall be de med to
have committed fraud if he/she, leads the other party o
his/her agent to believe or takes any action to believ the
particular matter is true, although he/she knows that it is false,
or suppresses any information in his/her possession, or
indulges in any other fraudulent act punishable under
prevailing law, with the intention of deceiving the opposite
party or his/her agent.
(d) A contract concluded through deceit:
Explanation
(1) Any of the following act shall be taken as deceit:
(i) Submission of false particulars on any matter
without reasonable basis for doing so;
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(ii) Misleading any party so as to aggrieve him/her;
(iii) Causing any wrong deliberately on the matter of
contract;
(2) In a case of a voidable contract under this section, the
following matters shall be dealt with as prescribed
below:
(i) The party caused to enter into a contract may,
instead of making the contract void, demand
his/her position to be remained the same, as it
was prior to conclusion of the contract.
(ii) Burden of proof of innocence of undue
influence shall be rest in the party who claims
that such contract is not concluded under an
undue influence in case a contract is concluded
with the person who is under one's influence
and amenable to his/her wishes.
Chapter- 4 :
Contracts relating to Guarantee, Indemnity and Subrogation
15. Contracts relating to guarantee: (1) A contract relating to guarantee
shall be deemed to have been concluded in case it provides that if any
person defaults in the repayment of the loan obtained by him or fulfillment
of the obligation accepted by him/her, it shall be repaid or fulfilled by a
third person.
(2) In case a third party has provided guarantee under Sub-section
(1) and in case the person who has to repay the loan d es not repay it or
fulfill the obligation to be fulfilled, the person guaranteeing such loan or
13
obligation shall repay the loan or fulfill the condition according to the
contract.
(3) Contract relating to guarantee must have been concluded in
writing.
16. Surety's liability : Except when otherwise provided for in the contract, the
surety's liability shall be as follows:
(a) Liability of the surety shall emerge from the vry time when
the person who has to meet the liability fails to meet it.
(b) Liability of a surely shall be similar to that of the person who
has to repay the loan or fulfill any obligation. The surety shall
remain responsible until the person becomes free from the
liability of repaying the loan or fulfilling the obligation.
(c) The creditors may impose the surety with the liabi ty
immediately after the default by the person who is under
obligation to repay the loan or fulfill the obligation.
(d) In case both security and guarantee have been provided in
consideration of any loan or liability, the surety shall have no
liability to the extent covered by the security so pr vided.
(e) The liability of a surety shall not terminate simply because the
person who has to repay the loan or fulfill the liability becomes
free from the liability through the mobilization of law.
Explanation
For the purpose of this Act, the term 'creditor' shall denote a
person who has supplied the loan and this term also includes a
person who may obtain any benefits from or have any work
done by the person who has to repay the loan or fulfill the
14
liability.
17. Circumstance in which surety will be free from liability : (1) Except
when otherwise provided for in the contract, the surety shall be free from
liability to the extent as mentioned in any of the following circumstance:
(a) In case the person who has to repay a loan or fulfill a liability
changes the terms and conditions of the contract in such a
way as to have a substantial impact on the contract without
the approval of the surety, in respect to the transaction to be
carried out after such changes.
(b) In case a contract is concluded to absolve from liability to the
person who has to fulfill the concerning matter in respect to
which the guarantee has been provided.
(c) In case the person who has to repay a loan or fulfill a liability
is absolved from liability, or in case the loan is waived, due to
the action of the creditors.
(d) In case the creditor agrees to absolve the debtor from the
liability by collecting a sum less than what is due, or to
provide additional time limit for repaying the loan, or not to
initiate a lawsuit.
(e) In case any action of the creditors causing an adverse impact
to the surety's right to legal remedy against the person who is
under obligation to repay the loan or fulfill the liability.
(f) In case the creditor loses, damages or returns any security
obtained by him from the debtors, to the extent of the value of
that security.
(g) To the extent to which the person who is under obligation to
repay a loan or fulfill a liability has repaid the loan or fulfilled
15
the liability according to the contract.
(2) Notwithstanding anything contained in Sub-section (1), the
surety shall not be deemed to have been absolved from the liability, except
when otherwise provided for in the contract, simply because the creditor
fails to initiate legal action against the surety or try to realize the amount to
be realized by him/her in time.
(3) In case there are two or more sureties, and in case the
creditors absolves any one of them from the liability, the other
surety/sureties shall not be free from his/her/their share in the liability. In
case the share in the liability of the surety/sureties can not be separated, no
surety shall be deemed to have been absolved from his liability simply
because; the creditor has absolved him/her from the liability.
(4) In respect to a contract relating to guarantee which concerned
with the fulfillment of a liability, the surety shall not be deemed to have
been absolved from the obligation of fulfilling the liability under the
contract simply because a dispute has arisen among the parties in relation to
that contract, except when otherwise provided for in the contract.
18. Relationship between the Surety and the Debtors: Except when
otherwise provided for in the contract, the relationship between the surety
and the debtors in respect to the following matters shall be as follows:
(a) The surety shall cause a person who is under obligation to
repay a loan or fulfill a liability according to the contract.
(b) In case the debtor has supplied any property or security to the
surety in consideration of the guarantee provided by him/her
while obtaining the loan or accepting a liability, the surety
may not mortgage, sell, or otherwise transfer the titl , hereto
without the consent of the debtor.
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(c) In case a guarantee has been provided in considerat on of any
loan obtained or liability accepted for any specific purpose,
the objectives, nature or terms and conditions of that loan or
liability may not be changed without the consent of the
surety.
19. Surety to substitute creditor: (1) After the surety repays the loan to be
repaid by the debtor or fulfills the liability to be fulfilled by the debtors
under the contract, the surety shall substitute the creditor in regard to that
loan or liability, and may initiate legal action against the debtor like a
creditor under this Act or prevailing law.
(2) Notwithstanding anything contained elsewhere in this
chapter, the total amount and interest due on that amount, or any other fee
or amount payable on that, shall be paid by the debtors to the surety in
consideration of the loan repaid or liability fulfilled by the surety on his
behalf according to the contract relating to guarantee.
(3) In case it becomes necessary to take legal action because of
the failure the debtor to pay the amount payable by him/her under Sub-
section (2), or in case it becomes necessary to incur any other expenses in
consideration of the surety may have such expenses recovered from the
debtor.
20. Guarantee related viable contract: The surety may cause to declare
void the contract relating to guarantee in the following circumstances:
(a) In case the creditors him/herself, or any other person with his/her
consent, has obtained the guarantee by supplying wrong or misleading
information or notice to the surety in connection with the matter connected
with the transaction in respect to which the guarantee has been provided;
(b) In case the subject matter, property (cash or kind) involved or
17
facts relating to guarantee have been concealed or not mentioned:
(c) In case the contract has been concluded with a provision a third
person as a surety, and the third person has not given his/her consent to
provide the guarantee.
21. Equal liability of co-sureties: (1) In case two or more person have
jointly or separately provided joint guarantee for any loan or liability, and
in case the debtor fails to repay the loan or meet the liability, the co-sureties
shall repay the loan or meet the liability or the requirements of the contract
on an equal basis, except when otherwise provided for in the contract.
(2) In case the guarantee has been provided on a sector wise basis
while providing joint guarantee under Sub-section (1), a surety shall be
required to meet only the liability for that sector for which he/she has
provided the guarantee.
22. Contract relating to indemnity : (1) In case person has entered into a
contract relating to indemnity with a provision to pay any party to a
contract or a third person for any loss or damage that may result from
his/her actions while working under the direction of that party to that
contract, he/she may realize as compensation all or any of the following
amounts, subject to that contract:
(a) The indemnity amount mentioned in the contract;
(b) In case any loss or damage has been caused to a third person,
the amount to be paid or borne in consideration thereof;
(c) The amount spent on the case filed or defended by him/her in
connection with the contract relating to indemnity;
(d) The amount spend on the legal action, if it becomes necessary
to initiate such action for failure to pay the amounts
18
mentioned in Clause (a) to (c).
(2) Notwithstanding anything contained in Sub-section
(1), in case any person, while working under the direct on of the other
party, works negligently or with the intention of causing any loss or
damage to that party or a third person, and in casethe concerned party or
the third person suffers a loss damage as a result thereof, he/she shall
him/herself be responsible for such loss or damage.
23. Provision concerning subrogation: (1) In case any person has
concluded a contract with any other person against y loss or damage that
could be caused by a third person to his/her property, facilities, rights or
profits that could result from his/her business, the other person who has
signed the contract shall him/herself bear any such loss or damage
irrespective of who is responsible.
Provided that, in case the contract has been signed with a
provision to have any such loss or damage borne by any other person, such
loss or damage shall be realized from that person.
(2) In case the amount or compensation to be paid for any loss or
damage under Sub-section (1) has been mentioned in the contract, it shall
be done accordingly and in case no such provision has been made in the
contract, an appropriate amount or compensation shall be paid, or
arrangements be made for payments, to the person affected by the loss or
damage, or to his/her heir in case he/she is dead.
(3) In case there has been any loss or damage as mentioned in
Sub-section (1), the person paying the amount or compensation under Sub-
section (2) shall be deemed to have subrogated the person who has
sustained the loss or damage, and, accordingly, the subrogator may have the
amount or compensation in consideration of such loss or damage recovered
19
from the person causing such loss or damage.
24. Rights of subrogator: The rights and liabilities of a subrogator shall be
as mentioned in the contract, if any, and if not, it shall be as follows:
(a) All the rights of the person who has sustained the loss or damage
shall devolve on the subrogation.
(b) The subrogator mentioned in Clause (a) may realize from the
person who has caused the loss or damage, or from the party to a
contract concluded in that connection, if any, the amount or
reasonable compensation paid by him/her to the person who has
suffered the loss or damage, as well as the expenses i curred in
contesting a case, if any.
Chapter- 5:
Contracts Relating to Bailment
25. Contract relating to Bailment: A contract relating to bailment shall be
deemed to have been concluded in case any person delivers any property to
another person on a returnable basis or for handing it over to any other
person or selling it as ordered by him/her.
Provided that, a deed must be execute while bailing a y property worth
more then Rs.5,000.00
Explanation: For the purpose of this chapter, the term 'property' includes
any movable property and title to such property.
26. Process of bailment to be deemed completed: (1) The process of
bailment shall be deemed to have been completed aftr the bailee receives
the bailment property for being kept as such.
(2) In case any property is already being kept by an person or a
person authorized by him/her under his/her custody r control, the
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concerned property shall be deemed to have been takn by him/her as a
bailed property.
27. Particulars of bailed property to be mentioned: (1) In case the bailee
knows that the bailed property must not be used due to any defect in it, or
because it could cause any loss or damage or because separate
arrangements or provisions be made for its protection, he/she shall inform
the bailee about all such matters to the best of his/her knowledge.
(2) In case any information to be supplied under Sub-section (1)
is not supplied even while knowing about it, the bailer must bear the loss or
damage caused by that property or because of that property to the bailee.
(3) Notwithstanding anything contained in Sub-section (1), in
case: any property given on rent or as collateral or for sale causes any loss
or damage while using it due to its defect, the bailer must bear such loss or
damage even if he/she has no knowledge about the defect in the property.
28. Bailee's liability : (1) A bailee shall look after and arrange for the safety of
the property received by him/her as bailed property as mentioned in the
terms and conditions of the contract, or as his/her own property in case
nothing has been mentioned in the contract.
(2) Except when otherwise provided for in the contract, in case any
bailed property depreciates or is lost, stolen, damaged, destroyed, decreased
or harmed because of a natural calamities despite taking care and arranging
for its security under Sub-section (1), the bailee need not return such
property.
Provided that, in case the property is depreciated or is lost, stolen,
damaged, destroyed decreased or harmed because of the negligence or
malfide intention of the bailee, or of his/her failure to take care or ensure its
safety according to the terms and conditions of the contract, he/she must
21
return the property or pay an equivalent amount to the bailer.
(3) In case the bailee uses the bailed property wihout having the
right to do so under the contract or in a manner contrary to the terms and
conditions of the contract, and in case such use causes any loss, damage,
destruction, depreciation or harm to the property, the bailee shall pay for
compensation to the bailer.
(4) Except when otherwise provided for in the contract, the bailee
shall not mix-up the bailer's property with his/her own property.
Provided that, in case the bailee has mixed-up his/her own property with
that of the bailer, both parties shall have title on that property, as well as to
the income accruing there from, in proportion to their respective shares.
(5) In case the bailee has mixed-up his/her own property with the
bailer's property and the property so mixed-up can be separated, the two
parties shall have title to their respective property so separated, and the
expenses incurred for separating the property so mixed and the loss, if any
caused, to the bailer while mixing-up such property in that manner shall be
borne by the bailee.
(6) In case the bailee has mixed-up his/her own property with the
bailer's property without the consent of the bailer and their property cannot
be separated as mentioned in Sub-section (5), the title of the bailer to the
bailee's property shall terminate if he/she agrees to obtain his/her share
from the property so mixed-up. In case the bailer does not agree to take
his/her share from such property the bailee shall be required to pay
compensation for his/her property.
29. Bailed property to be returned: (1) After the expiry of the ,period
prescribed while bailing a property or fulfillment of the objectives with
which the property has been bailed, the bailee shall return the bailed
22
property to the bailer.
(2) In case the property is not returned under Sub-section (1)
within the prescribed period, or within a reasonable period according to the
nature of the property where no such period has been pr scribed, or in case
the bailer does not take it back and the property is lost, stolen, damaged,
destroyed or reduced after that date or bailer suffers any loss or damage due
to that property after that date the party because of which the loss or
damage has resulted shall bear the loss or damage.
(3) Except when otherwise. provided for in the contract, in the
case of a bailed property owned by several persons, it may be handed over
to any one of such owners or to the person ordered by them, and the hand
over of the property in that manner shall be deemed to have been done
duly.
(4) Except when otherwise provided for in the contract, the
property raised or earned through the bailed property shall also belong to
the bailer.
30. Person bailing other's property to be held responsible: In case any
person bails any property on which he/she has no title, r ght or ownership to
any other person to keep as a bailed property, and the bailee has to bear any
claim of a third party or any loss, damage or any expenses in for accepting
that bailment the bailer shall be required to bear such expenses as well.
31. Found property may be kept after notifying the police: In case
person finds any property in any way, he/she may keep it safely with
him/herself until the concerned owner is found out after notifying the
police. The expenses incurred for finding out the owner of the property and
for keeping the property shall be borne by the concer ed owner, and the
person who has found the property may keep it with him/herself until the
23
owner pays such expenses.
32. Property given for repair and maintenance to be returned: (1)In
case person has given any property for repair, improvement or renovation
in any way to any person, the latter shall return it to the former after
collecting expense or service charge fixed for repair, improvement or
renovation.
(2) The property handed over under Sub-section (1) sha1I be
returned to the concerned owner after repairing, improving or renovating it
within the period mentioned in the contract. In case it is not returned within
the prescribed period, or any additional loss or damage is caused to the
property or the property is damaged in such a way as to become unusable in
the course of repair, improvement or renovation, action shall be taken as
provided for in the contract, and if no provision has been made in the
connection in that contract, an appropriate compensation shall be paid to
the concerned owner.
(3) Notwithstanding anything contained elsewhere in this
Section, the person repairing, improving or renovating any property may
keep it with him/herself until the cost of repair, improvement or renovation
or the service charge fixed for that purpose is paid. In case the cost or
service charge is not paid within a reasonable period, the person repairing,
improving or renovating the property may recover his/ er expenses or
service charge by selling the property,
33. Bailment Expenses: While bailing a property, expenses incurred for
looking after and ensuring the safety of the bailed property shall be borne
by the bailer, except when otherwise provided for in the contract.
34. Contract relating to bailment to be void: (1) In case it is proved that
any property has been bailed with the intension of avoiding a partition of
24
property or payment of any government charge or any amount involved in
any claim or to be paid to anybody, or with any other illegal motives, the
contract relating to such bailment shall be void.
In case the bailee does not keep the bailed property according to the
term and conditions of the contract, the bailer may get back the bailed
property at any time.
Chapter -6
Contracts relating to Collateral and Deposit
35. Contracts relating to collateral or deposit: (1) In case any person has
obtained a collateral while supplying credit to anybody as a security for that
credit, or obtained any property as a deposit in the form of a guarantee to
perform the concerned work while having any work performed a contract
relating to collateral or deposit shall be deemed to have been concluded.
Explanation:
For the purpose of this Chapter, the term 'property' shall denote any
movable or immovable property, and title or document establishing
title to that property.
(2) In case a collateral has been obtained while supplying a credit,
the credit and interest thereon, and incase any deposit has been obtained to
perform any work the other expenses relating to that work, as well as the
expenses incurred for looking after the collateral or deposit, shall also be
deemed to have been included in the contract relating to collateral or
deposit.
36. Collateral or deposit to be returned: (1) Except when otherwise
provided for in the contract, the collateral obtained for a credit shall be
returned after the repayment of the credit, or the deposit obtained for a
25
work shall be refunded to the concerned person after the completion of that
work.
(2) In case the collateral or deposit kept under Sub-section (1)
has been or can be divided into different parts, the collateral or deposit may
be returned to the extent covered by the portion of the credit repaid or work
performed.
37. Rights of person obtaining collateral or deposit: (1) In case a credit
has been obtained by pledging any property as collateral and the debtor
fails to repay the credit or interest thereon, if any, within the prescribed
period, the person who has taken the collateral may initiate action
according to, law and realize the amount to be realized in consideration of
that credit by selling or auctioning the collateral according to current
market price or transfer the title to such collaterl subject to law in case it
can not be sold or auctioned.
(2) In case the property kept as collateral is sold at a price lesser
than the amount to be realized from the debtor by the person who has the
collateral under Sub-section (1), the shortfall may be recovered form other
assets of the debtors. In case the collateral is sold at a price higher than the
amount to be recovered, the excess amount shall be refunded to the debtors.
(3) Notwithstanding anything containing in Sub-section (1) and
(2), in case the property kept as collateral has not yet been sold or the title
to it has not yet been transferred, the person who has pledged the property
as collateral may clear his property by repaying the credit and interest
thereon and any other amount payable at any time.
Provided that, the person pledging the property as collateral shall
also bear the additional liability emerging on the property kept as collateral
owing to his failure to repay the amount within thestipulated period.
26
(4) In case anyone has been entrusted with the responsibility of
performing any work by obtaining any property as deposit, and the
concerned person fails to complete the concerned work or the concerned
work fails to be completed within the stipulated period, the property kept as
deposit may be used to complete the work or to recov r the expenses
incurred thereupon. In case the work can not be completed with the
property kept as deposit, the amount in shortfall my be recovered from the
other assets of the person who has furnished the deposit.
38. Consequences of pledging property without sufficient title as
collateral or 'deposit: (1) In case anyone has obtained a credit or work
by pledging as collateral or depositing any property to which he/she has no
title or ownership or any property received under a contract which is void
under this Act, and the person obtaining such collateral or deposit has no
knowledge about the matter, the latter may demand the property from the
….. to which the he/she has a title so as to be kept as collateral or deposit.
In case the former fails to provide such collateral, the latter may cause the
contract to be void.
(2) In case any property received under a void contract has been
pledged as collateral or deposit, and such contract h d become void before
furnishing such collateral or deposit or the party receiving the collateral or
deposit know that the concerned property did not belong to the person
furnishing it as collateral or deposit, the person obtaining such property as
collateral or deposit shall have no right to it and may realize the amount to
be realized by him/her or have the work to be performed from the other
property of the party furnishing the collateral or deposit.
(3) In case the person furnishing the collateral or deposit has a
partial or limited title to or ownership of the proerty pledged as collateral
or deposit, the person accepting such property as collateral or deposit shall
27
also have title to that property to the same extent.
39. Creditors to have equal status: (1) In case anyone has obtained credit
from several creditors in one or several installments by pledging his/her
property as collateral, and the property so pledged as collateral is not
sufficient to repay the credit of all the creditors, all the creditors who have
used the property as collateral shall be deemed to have equal status in
respect to outstanding credit and all of them may make a proportionate
claim on the property, except when otherwise provided for in the contract.
(2) In case any property which has already been pledged as
collateral under Sub-section (1) is again pledged as such with a provision to
give priority to the second creditors in the future, the concerned contract
shall be void. In case the (second) creditor has already realized his/her
credit from the collateral before the contract becomes void even while
knowing that there are other creditors in respect to the collateral, he/she
shall refund the amount to the other creditors and realize his/her credit from
the other assets of the person who has pledged the prop rty as collateral.
Chapter- 7
Contract relating to Sale of Goods
4o. Contract relating to sale of goods: (1) A contract relating to sale of
goods shall be deemed to have been concluded . in case any seller agrees to
hand over any goods to the buyer immediately or in the future by receiving
a price.
Explanation
♣For the purpose of this chapter, the term 'goods' means any type of
movable or immovable property except current used currency, security,
♣ Amended by the Act Amending Some Nepal Acts, 2064
28
or actionable claim .
(2) A contract relating to sale of goods may be conditional or
unconditional.
(3) A contract may be concluded with a provision t sell goods
owned or possessed by the seller or those to be produced or acquired by
him/her in the future.
41. Contract relating to sale of goods to be void: In case a contract has
been concluded to sell specific goods, and in case the goods have suffered
any loss or damage at the time of or before concluding the contract and the
seller had no knowledge thereon at the time of concluding the contract, the
contract shall be void.
Explanation
For the purpose of this Section, 'Specific goods' means the specific goods
mentioned at the time of concluding the contract.
42. Determination of price of goods: (1) Except when otherwise provided
for in the contract, the price of goods shall be determined on the basis of the
terms and conditions of the contract or according to the procedure agreed
upon in the contract or in the process of transaction between the parties.
(2) In case the price of goods has been determined according to
their weight and measurement, the price of goods shall be fixed on the basis
of the net weight and measurement, except when otherwise provided for in
the contract.
(3) In case the price of goods can not be determined under Sub-
section (1) or (2), the buyer shall pay to the seller a reasonable price taking
into account the concerned circumstances.
43. Price of goods to be paid: Except when otherwise provided for in the
29
contract, the price of goods must be fully paid as follows in the following
circumstances:
(a) A buyer shall pay to the seller the price of g ods bought by
him/her at the time of buying them.
(b) The price of goods shall be paid in cash.
(c) The contract shall be deemed to have been concluded with a
provision to pay the price and. hand over the goods
simultaneously.
Explanation
For the purpose of this Section, the term 'cash' includes
cheques, traveler's cheques, promissory notes, bills of
exchange, letter of credit, bank draft, credit card and
telegraphic transfers payable through bank.
44. Particulars of goods: (1) In case the name, brand, trademark or
specification of goods to be sold are mentioned in the contract, the contract
shall be deemed to have been concluded to sell goods f the same name,
brand, trade mark or specification.
(2) In case the name, brand, trademark or specification and
sample goods to be sold have been mentioned, the bulk of those goods shall
correspond not only to the sample but also to their name, brand, trademark
or specification as mentioned in the contract.
45. Title to be deemed to the goods to be sold: (1)Except when otherwise
provided for in the contract, the seller shall be de med to have or going to
have title to the goods agreed to sell in the future. Goods agreed to sell in
the future shall be considered to be or going to be fre from anybody's
seizure, control or procession .
30
(2) Except when otherwise provided for in the contract, the seller
shall be deemed to have the right to sell the goods s ld or to be sold by
him/her.
46. Goods to be deemed to be of merchantable quality: (1) Except
when otherwise provided for in the contract, goods sold or to be sold shall
be deemed to be of merchantable quality.
(2) In case specific goods sold or to be sold for any specific
purpose are suitable for that purpose, they shall be considered to be of
merchantable quality.
Provided that in case any defect in the goods has been mentioned in
the contract itself, or in case the buyer had become aware of any defect
before signing the contract or while inspecting the goods, those goods shall
not be deemed to be of merchantable quality.
(3) In case the quality of specific goods has been m tioned in
the contract, those goods shall be deemed to be of the same quality. In case
the quality of the goods is not mentioned in the contract, their quality shall
be as of the current standard.
(4) Except when otherwise provided for in the contract, the seller
shall not be deemed to have given a warranty to the effect that the goods
sold or to be sold are of a specific quality.
47. Sale through samples: (1) In case provisions have been made in a
contract to sell goods after inspecting their samples directly or otherwise, it
shall be deemed to have been signed to sell goods after inspecting their
samples.
(2) In case a contract has been signed to sell goods after
inspecting their sample, it shall be deemed to include the following
conditions, except when otherwise provided for in the contract:
31
(a) The bulk of the goods shall correspond to the samples in
quality.
(b) The buyer shall have, a reasonable opportunity to compare
the quality of the bulk of the goods with the sample.
(c) The goods sold or to be sold shall be free from any defect,
and that their merchantable quality shall be apparent while
inspecting them at the time of comparing them with the
sample.
48. Provisions concerning transfer of ownership of goods: (1)In case a
contract has been signed to sell specific or particular goods, their delivery
shall be made as provided for in the contract, if any, and if not, according to
the conditions of the contract, the conduct of the parties, and the intention
of the parties expressed through the concerned circumstances.
(2) Except when otherwise provided for in the contract, in case a
contract has been signed in such a situation that specific goods can be
delivered immediately, the parties shall be deemed to have the intention of
delivering them after concluding the contract or paying their price.
(3) In case a contract has been signed in such a situation that specific
goods can be delivered immediately, and in case the buy r has to weigh,
measure and examine them or execute any function to determine their price,
such goods shall not be delivered until such functio s are executed and
information thereof is supplied to the seller within a reasonable period.
(4) Except when otherwise provided for in the contract, a contract
shall be deemed to have been made with a provisions to deliver the goods at
the very place where they have been sold or are to b sold.
(5) Except when otherwise provided for in the contract, the title
or ownership of the buyer shall be deemed to have been established on the
32
goods from the very moment when they are delivered to him/her.
49. Risk to be borne: (1) Except when otherwise provided for in the contract,
the seller him/herself shall bear the risk of any loss or damage to the
concerned goods until they are delivered to the buyer.
(2) In case there has been a delay in the delivery of goods due to any
reason concerning the buyer or the seller, the party responsible for such
delay shall bear the risk of loss or damage under Sub-section (1).
(3) In case the seller has agreed to deliver goods from the place
of purchase to the place specified by the buyer, th seller him/herself shall
bear the risk of any loss or damage to goods, except when otherwise
provided for in the contract.
50. Buyer's right to inspect goods: In case sold goods are delivered to the
buyer; the buyer shall have a reasonable opportunity to examine and
ascertain whether or not they, conform to the contract and he/she shall not
be deemed to have accepted the goods until this is done.
51. Goods to be deemed delivered: The buyer shall be deemed to have
received the goods in any of the following' circumstances:
(a) In case the buyer or his/her representative reciv s the goods;
(b) In case a receipt or letter acknowledging the delivery of the
goods is issued;
(c) In case the buyer inspects the goods and ascertins hat they
conform to the contract under Section 50, and accordingly keeps
them in his/her stock;
(d) In case the goods reach the buyer and are retained by him/her,
even if he does not send information about his/her refusal to
accept them within a reasonable time limit,
33
(e) In case he/she does anything to prove his/her ownership of such
goods.
52. Time-limit for delivering goods: (1) In case the contract provides that
gods to be delivered at any specified time or within any specified period,
the seller must deliver the same to buyer at that very time or within that
very period.
(2) Notwithstanding anything contained in Sub-section (1), in case
the buyer accepts goods delivered by the seller before the time or period
prescribed in the contract, or after the time of period prescribed in the
contract, the seller shall be deemed to have deliver d the goods.
53. Documents relating to sold goods to be handed over: Except when
otherwise provided for in the contract, the ownership of goods shall not be
deemed to have been transformed after sale until basic documents
connected with their ownership or required for their use are handed over.
54. In the event of delivery of goods in a quality different from the
contracted quality: (1) In case the seller delivers goods to the buyer in
a quantity less than the quantity mentioned in the contract, the buyer may
refuse to accept them.
Provided that, in case the buyer accepts goods even in the quantity, he/she
shall be required to pay the price of the quantity at the rate mentioned in the
contract.
(2) In case the seller delivers goods to the buyer in a quantity
higher than the quantity mentioned in the contract, the buyer might accept
them only in the quantity mentioned in the contract, nd reject the rest or
the entire quantity.
Provided that, in case the buyer accepts the entire quantity of
goods so delivered, he/she shall be required to pay for them at the contract
34
rate.
(3) In case the seller delivers to the buyer, he has contracted to
sell mixed with goods of a description not included in the contract, the
buyer may accept the goods mentioned in the contract and reject the rest, or
reject the entire lot.
(4) Except when otherwise provided for in the contract, the buyer
shall not be bound to accept delivery of goods in installments.
(5) Excepts when otherwise provided for in the contract, in case
the buyer refuses to accept goods brought by the sell r for delivery, the
buyer shall not be bound to return them to the seller.
Provided that the buyer shall inform the seller through the
quickest possible means about his/her refusal along with the reasons
thereof.
55. Special provisions concerning compensation: Notwithstanding
anything contained elsewhere in this Act, action in respect to compensation
for contract under this chapter shall be taken as follows:
(1) In case a buyer does not accept or refuses to accept or refuses
to pay the price of goods after once signing a contract relating to sale of
goods, the seller may, subject to the contract, claim compensation from the
buyer in consideration of the buyer's failure to accept or refusal to accept
the goods.
(2) While determining compensation under Clause (a), in case
goods not accepted or rejected by the buyer are available in the market,
compensation shall be determined on the basis of the difference between
the price of goods mentioned in the contract and the market or current
price.
(3) In case the seller does not deliver or refuses to deliver goods
35
according to the contract after signing a contract elating to sale of goods,
the buyer may claim compensation from the seller in co sideration of
his/her failure to deliver the goods.
While determining Compensation under Clause (c), in case the
goods which the seller has refused or failed to deliver to the buyer are
available in the market, compensation shall be determined on the basis of
difference between the price of the goods mentioned i the contract and the
market or current price.
Chapter- 8
Contracts Relating to Agency
56. Contracts relating to Agency: Any person may appoint any other
person as his/her agent to do anything on his/her behalf, except something
connected with his/her personal skills or to conduct business as his/her
agent of may transaction with a third person on his behalf or to represent
himself to such person, or to establish any kind of legal relation with the
person appointing an agent and a third person, and in case an agent is so
appointed, a contract relating to agency shall be de med to have been
concluded.
57. Recognition of transaction made or carried out by an agent: (1) The
liability resulting from the contract concluded through an agent appointed
under Section 57 or from the action taken or work performed by the agent,
shall be recognized as resulting from a contract signed or work performed
by the principal person, and implemented accordingly.
Provided that, the principal person shall not be responsible for any action
taken by the agent beyond his/her authority.
(2) Notwithstanding anything contained in Sub-section (2), among
the actions taken beyond the authority, in case some f them are within
36
his/her authority and some beyond it, and in case the action taken from
within his authority can be separated principal person shall be responsible
for actions taken to the extent of his/her authority.
(3) Any information supplied to the agent in the course of
transactions with the principal person through his/her agent shall be deemed
to have been supplied to the principal person.
58. Power to appoint Sub-agents: (1) In case it is necessary to appoint, a
sub-agent according to the nature of any trade, busines or transaction, or in
case a sub-agent can be appointed according to provision contained or
practice followed in the contract relating to agency, the agent may, except
when otherwise provided for in the contract, appoint a sub-agent with the
consent of the principal person.
Provided that, an agent who has been appointed on the condition that he/she
will personally represent or personally execute anywork may be able to
appoint a sub-agent.
(2) In case a sub-agent is appointed under Sub-section (1), the
principal person shall be informed accordingly, and a sub-agent so
appointed in that manner shall have right and duty equal to that of the agent
appointed by the principal person.
(3) In case any agent appoints a sub-agent without t e consent of
the principal person, the latter shall not be respon ible for any action taken
or work performed by the sub-agent. A sub-agent so appointed shall be
personally responsible.
59. Matters to be complied with by agent: (1) Except when otherwise
provided for in the contract, an agent shall comply with the following
matters:
(a) Work subject to the conditions of the contract relating to
37
agency and the directives issued by the principal person.
(b) In case no condition has been mentioned in the contract or
the principal person has issued no directive, the ag nt
shall work as entrusted to him/her in the manner in which
it has to be performed according to the nature of the trade
and business and the laws and practices of the place of
transaction, with bona fide motive, full dedication and
necessary skills and efficiency.
Provided that in case the principal person has a knowledge
in advance that the agent has a knowledge in advance that
the agent has no skill or capability in respect to any
subject, the agent shall not be responsible for any loss or
damage resulting from such lack of skill or capability.
(c) An agent who has been removed from his/her position
shall not do anything on the same subject, as before, in the
capacity of an agent.
(d) The agent shall supply or show details of account and
record relating to the agency business when deanded by
the principal person.
(e) In case any obstruction, obstacle or difficulty arises in the
course of performing work relating to agency, the agent
shall notify the principal person as soon as possible and
obtain necessary directives, and the principal person shall
him/herself be responsible for any action taken according
to the directives so issue.
(2) In case the principal person suffers any loss r damage
because of the failure of the agent to fulfill his/er duties under Clause (a),
38
(b) and (c), agent shall personally bear loss or damage so incurred.
60. Agent to be responsible: (1) Except when otherwise provided for in
the contract, the agent shall be personally responsible for transactions made
by him/her on behalf of the principal person in the following
circumstances:
(a) In case he/she concludes a contract with a third party in
relation to any transaction with provision for personal
responsibility.
(b) In case any work has been done for or on behalf of an
unidentified principal person, in case the principal erson
is not identified;
(c) In case the principal person can not be sued for any
reason;
(d) In case the contract has been signed in his/her own name;
(e) In case anything has been done in contravention of the
contract relating to the appointment of agent or beyond
his/her authority;
(f) In case any fraud or cheating has been committed n the
course of the transaction
(g) In case the agent has to bear personal liability according to
the nature of the trade;
(h) In case the interest of the agent is also involved in the
transaction.
(2) Except when otherwise provided for in the contract concluded
between the agent and a third person, only the fact that the gent is
personally responsible under Sub-section (1) shall not be deemed to have
39
prejudices the right of the third person to make any claim against the
principal person and legal action may be initiated against the principal
person as well for arrears due from the agent.
(3) For the purpose of initiating legal action against the principal
person under Sub-section (2), the time limit shall be deemed to have begun
from the date of the last payment made by the agent.
61. Termination of agency: (1) Except when otherwise provided for in
the contract, the agency shall be deemed to have epso facto terminated in
the following circumstances;
(a) In case the agent voluntarily decides not to continue it;
(b) In case the principal person conceals the authority granted
or contract signed with the agent or gives a notice to the
agent regarding the impossibility of complying with t e
contract;
(c) In case the agent has been appointed for any specific work
that works is completed;
(d) In case the agent has been appointed for a specific period,
after the expiry of that period;
(e) In case the principal person or the agent loses his/her
senses;
(f) In case the principal person is declared bankrupt;
(g) In case the subject regarding, which the agent has been
appointed no longer exists;
(h) In case an agent is appointed by a company or an agent of
a company, if the company is liquidated.
(2) All or any of the power granted by the principal erson to the
40
agent may be cancelled at any time before the agent exercises them.
Provided that, in case the agent has already exercised some of such powers,
the work performed regarding to those powers shall not be deemed to have
been cancelled.
(3) Notwithstanding anything contained elsewhere in this
Section, in case the agent has a share in the property connected with the
main subject of the agency, the agent may not be dismissed, in such a
manner as to have a negative impact on such share.
62. Prohibition to remove an agent: (1) Except when otherwise provided
for the contract, in case an agent has been appointed for any specific period
or work, the principal person shall not remove him/er before that period or
before the completion of that work without appropriate and sufficient
reasons.
(2) An agent who has been appointed without prescribing any
specific period or work can not be removed without a prior notice
mentioning appropriate reasons;
(3) In case the principal person removes any agent in a manner
opposed to Sub-sections (1) or (2), the principal person shall pay a
reasonable compensation to the agent.
63. Agent prohibited from giving up agency: (1) Except when otherwise
provided for in the contract, the agent who has been appointed for a specific
period or work shall not stop working as an agent before the expiry of the
specific period or completion of the specified work without appropriate and
sufficient reasons.
(2) An agent who has been appointed without specifying the period
or work under Sub-section (1) shall not give up that work without informing
the principal person in advance along with the reasons for doing so.
41
(3) In case any agent stops working in that capacity contrary to
Sub-section (1) or (2), the principal person may claim a reasonable
compensation.
64. Sub-agent also to leave if agent leaves: In case an agent no longer
remains in that capacity under this act, the sub-agent appointed by him/her
shall also be deemed to have automatically left.
Chapter- 9
Contracts Relating to Transportation of Goods
65. Contracts relating to Transportation: (1) A contract relating to
transportation shall be deemed to have been concluded if it provides for the
transportation of goods from one place to another.
(2) Except when otherwise provided for in the contract, the
receipt to be issued by the transporter to the owner of goods for their
transportation at the time of handling them over fothe purpose of
transportation shall be recognized as proof of contract between them.
Explanation:
For the purpose of this Chapter, the term 'transporter' means a person
operating a transport service other than air or marine t ansport, or a person
operating a business of such operation, and the term also includes a person
operating the transport business through animal or ny other means.
Provided that, in case any person employed by the owner of goods
on wage basis or his/her agent or a person working under him/her transports
goods, he/she shall not be recognized as a transporter f the purpose of this
chapter.
66. Transporter's obligations: (1) It shall be the obligation of the
transporter to transport and condition goods received from their owners for
42
transportation at the prescribed place and in theirproper condition.
(2) In case goods received from the owner for transportation are
lost, destroyed, broken, harmed or damaged, or in case they do not reach
their destination in proper condition for any other r ason, the transporter
shall be held responsible.
(3) The transporter shall transport goods within the period
mentioned in the contract, and within a reasonable period in case no period
for transporting the same has been mentioned in the contract, and hand
them over to their owner or his/her agent or a person designated by him/her.
67. First transporter to be held responsible in case goods are
transported through several means of transport:
In case it becomes necessary to transport goods throug more than one
transporter or though more than one means of transport, the transporter to
whom the owner of goods has handed them over shall be held personally
responsible for the purpose of this chapter, except when otherwise provided
for in the contract.
68. Liability of transporter to be limited : (1) Except when the owner of
goods or his/her agent has clearly declared at the im of concluding the
contract that the goods to be transported are worth more than Ten Thousand
Rupees or except when otherwise provided for in the contract, the amount
of compensation to be paid by a transporter for any loss or damage to goods
transported by him/her shall not exceed Ten Thousand Rupees.
(2) Notwithstanding anything contained in Sub-section (1), the
transporter shall not be held liable for any loss or damage to gold, sliver,
diamond jewels or goods made thereof, precious stone, negotiable
instruments, securities, documents registered by offices, certificates issued
by educational and other institutes, coins, bank notes, postal stamps, fish,
43
meat, fresh fruits and vegetables, insecticide, inflammable materials,
petroleum products, precious art pieces, idols, curio goods or fragile goods,
wildlife and pets, handicrafts, arms and ammunition, explosives, radio,
television, computer and similar other goods and their spare parts,
machinery and goods specified in prevailing law as those which have to be
declared by the owner before their transportation, except when the owner or
his agent has clearly declared them at the time of signing the contract or at
the time of handing them over to signing the contract or at the time of
handing them over to the transportation for the transporter.
(3) For the purpose of bearing the risk involved in the
transportation of goods mentioned in Sub-section (2), the transporter might
have them insured against the risk through their owner or his/her agent or
by him/herself by collecting a separate fee for the purpose, or take other
necessary arrangement to avoid the risk.
69. Transporters to be responsible: A transporter shall pay a reasonable
compensation to the concerned owner for any loss or damage in the process
of transportation of goods declared at the time of signing the contract of
handling them over to the transporter for transportation under this Chapter,
or for goods which need not be declared, as provided for in the contract, if
any, and, if not, reimbursement of the transported goods with the agreement
of their owner, or in case no such agreement is reached or can be reached,
according to the current price of the goods, and if the current price can not
be determined, according to a reasonable price, subject to Chapter 12.
70. Transporter's liability to be ended: Except when otherwise provided
for in the contract, the liability of a transporter shall be deemed to have
ended in any of the following circumstances:
(a) In case the transporter or his agent transport the goods and
hands them over to the owner or his/her agent, or a person
44
designated by him;
(b) In case the goods handed over to the transporter a e received
back by the owner or his/her agent.
(c) In case the transporter or his agent returns the goods to the
owner or his/her agents citing the reason why the goods can
not be transported within the prescribed period in the
circumstances mentioned in Clause (b) of Sub-section (2) of
Section 79.
Chapter- 10
Time, Procedure and Place for Performing Contracts
71. Times and Procedure of performing contract: (1) In case the time
and procedure of performing the contract has been me tioned in the
contract, it shall be performed within the specified time and according to
the specified procedure.
(2) In case no time or procedure of performing the work mentioned
in the contract has been specified, whereas, in case the work can be
performed only at any specific time or according to any specific procedure,
the contract shall be deemed to have been concluded so as to perform the
work at that time and according to that procedure.
(3) Except in the circumstances mentioned in Sub-section (2), in
case the time and procedure of performing the contract has not been
mentioned in the contract, the contract shall be performed within a
reasonable time by adapting a reasonable procedure.
72. Place for performing contract: (1) In case any specific place has
been specified in the contract for performing the work, the work shall be
performed at the same place.
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(2) In case any party has to hand over or deliver goods to the
other party under the contract, and the place where those goods are to be
handed over or delivered has not been specified in the contract, the contract
shall be deemed to have been concluded with a provision to and over or
deliver the goods at the place where those goods are to ed.
(3) In case the specific place where the work mentioned in the
contract has to be performed, has not been specified in the contract, and
where as that work can be performed only in a specific place, or in case the
work needs to be performed in any specific place due to the general practice
and custom or the nature of the work, the contract shall be deemed to have
been concluded with a provision to perform at work at place.
(4) In circumstances other than those mentioned i Sub-sections
(2) and (3), in case the place for performing the work prescribed in the
contract is not mentioned in the contract, the party performing the work
according to the contract shall inform the other party to specify a
reasonable place for performing the work, and the ot r party shall specify
a reasonable place to perform the work.
73. Circumstances in which contracts need not be performed:
Work under a contract need not be performed in any of the following
circumstances:
(a) In case one party to the contract absolves the ot r party from
fulfilling the obligations according to the contract;
(b) In case a voidable contract is made void by theparty
concerned;
(c) In case one can not execute the contract due to its violation by
the other party;
(c) In case it becomes unnecessary to perform the work mentioned
46
in the contract under any provision of this Act;
(d) In case it becomes unnecessary to comply with the contract
under Section 79.
Chapter- 11
Execution of Contract and Obligation Arising out of the Contract
74. Obligation under contract to be fulfilled: Each party to a contract
shall fulfill his/her obligation under the contract.
75. Reciprocal compliance with contract: (1) In case a contract has been
concluded with a provision requiring both parties to simultaneously fulfill
their respective obligations, and in case one party fundamentally shows a
conduct or intention of not fulfilling his/her obligation the other party shall
not be required to fulfill his/her promise.
(2) In case the order of priority relating to fulfillment of any
promise has been specified in the contract itself, it shall be fulfilled
accordingly, and in case no such order of priority has been specified, the
party who is required to do so first according to the nature of the contract
shall fulfill it.
(3) In case one promise can not be fulfilled without fulfilling
another promise under any contract containing recipo al promises, the
party, which can not execute the contract because of the failure of the other
party to fulfill its promise, may recover the loss or damage caused by the
failure of the other party to execute the contract.
(4) In case a contract of the type mentioned in Sub-section (1)
has been concluded, and any party obstructs the other party from executing
the contract, the party which becomes unable to execute the contract may
the contract cancel and also recover any loss or damage suffered by him/her
47
from the cancellation of the contract in that manner.
76. Devolution of rights and liabilities of contract: In case party to a
contract dies or loses his/her senses, the rights accruing from the contract
shall devolve on the heir to his/her property, and the heir shall also bear
liability to the extent covered by the property received by him/her.
Provided that, the rights and liabilities accruing on the basis of personal
skills and qualification shall not devolve on such heir.
77. Person to execute contract: (1) Except when the person concluding
contract is under the obligation to execute the contract, he/she may have it
executed by his agent or a person appointed by him/her or any other person
on his/her behalf.
Provided that, no party to a contract may transfer th obligations under the
contract to any other person without the consent of the other party.
(2) Except when otherwise provided for in the contract, once a
party accepts a work done by a third person, he/her may not later claim that
the work has to be done by the party signing the contract.
(3) In case two or more person have jointly signed a contract with
any other party, any of the persons jointly signing the contract shall fulfill
or cause to do so for the fulfillment of the obligat on under the contract,
except when otherwise provided for in the contract.
(4) In case any person has fulfilled his/her obligation under Sub-
section (3), the person so fulfilling the obligations may recover
compensation or loss on a proportionate basis from the other persons jointly
signing the contract.
(5) In a contract signed in the manner mentioned in Sub-section (3),
in case any party gives concession to any person belonging to the other
48
party from the obligations of his/her share, the other person shall not be free
from the remaining obligation of the contract.
78. Only the party shall have right to execute the contract: (1) Only a
person who is a party to a contract may demand the execution of that
contract from other party.
Provided that, in case the contract has been signed for the benefit of any
person, such person may demand the execution of that contract even if
he/she is not a party to that contract.
(2) In case two or more than two persons jointly agree upon to
perform or not to perform any work, except when otherwise provided for in
the contract, all persons so concluding- the contract may demand the
execution of that contract.
79. Contracts need not executed in the event of fundamental changes
in the situation: (1) In case it becomes impossible to execute a contract
as a result of fundamental change in the situation prevailing at the time of
signing of the contract, the work under the contract need not be performed.
(2) Without prejudice to the generality of Sub-section (1),
fundamental change shall be deemed to have come in the situation
prevailing at the time of signing of the contract in any of the following
circumstances:
(a) In case the contract becomes illegal and it can not be
executed;
(b) In case it becomes impossible to execute the contract due to
emergence of such situations as war, floods landslides, fire,
earthquakes, and volcanic eruptions, which are beyond the
control of human beings;
49
(c) In case anything essential for executing the contract is
destroyed or damaged, or no longer exists, or can not be
obtained;
(d) In case the contract has been signed with a provision to
provide services on the basis of efficiency, skill or talent, and
the person providing such service dies or loses his/her sense
or becomes incapable of performing the contract because of
physical or mental disability.
(3) Notwithstanding anything contained in Sub-section (2),
fundamental changes shall not be deemed to have come in the situation
prevailing at the time of signing the contract in ay of the following
circumstances:
(a) In case it becomes difficult to perform the contract;
(b) In case profit margin is low or loss is expected;
(c) In case any party to a contract is dependent upon any third
party who is not a party to the contract for performing the
contract, if the third party commits a mistake or becomes
unfit;
(d) In the event of strikes and lockouts;
(e) In case it becomes necessary to pay additional tax, fee or
other revenue;
(f) In case the contract has been signed with several objectives
and only some of them can not be fulfilled.
(4) In case it becomes impossible to execute a contract because
of fundamental changes in the situation as mentioned i Sub-section (2),
action in the following matters shall be taken as follows;
50
(a) The amount paid by one party to the other in co sideration of
the contract before such a change in the situation occurs shall
be refunded to the other party.
(b) Payment to be made or due from one party to the ot er in
consideration of the contract shall not be made aftr such a
change in the situation.
(c) In case any party has performed any work or paid any amount
before such a change in the situation, such work or amount
shall be calculated and the amount to be paid to each other
should be determined, and reasonable expenses incurred by
one party in consideration of the contract may be recovered
from the other party.
(5) Notwithstanding anything contained in this Section, after the
end of the situation mentioned in Clause (b) of Sub-section (3), the parties
to a contract may agree to fulfill their respective obligations by executing
the contract.
80. Facilities to be provided: The parties to a contract shall provide
facilities needed for executing the contract from their respective sides. In
case the contract can not be executed due to failure of providing such
facilities, the party failing to execute the contrac in that manner shall not
be held responsible.
81. Contract may be suspended or altered: (1) In case the parties to a
contract agree, all or any of the portions of the work to be performed under
the contract may be changed or amended, the time-liit for performing any
work under the contract extended, the contract suspended by not making it
obligatory to perform any work to be performed under the contract for
some time, the work mentioned in the contract may be replaced by another
51
work, or a new contract may be signed as a replacement of the original
contract.
(2) In case any change or amendment is made in the contract
under Sub section (1), a new contract shall be deemed to have been signed,
and the contract shall become effective accordingly. In case a new contract
is signed in this manner, liability under the initial contract need not be
borne except when otherwise provided for in the contract.
Chapter- 12:
Breach of Contract and Remedies
82. Breach of contract: (1) In case any party to a contract does not meet liability
under the contract, or gives a notice to the other party that he/she will not
perform the work to be performed under the contract, or in case his/her
action or conduct shows that he/she is incapable of performing the work
under the contract, he shall be deemed to have breached the contract.
(2) In case a party has broken the contract under Sub-section (1),
or in case his/her action or conduct shows that he/she has not basically
compiled with the contract, the other party shall not be compelled to
perform the contract, and may cancel the contract by furnishing a notice
thereof to the other party.
83. Compensation on breach of contract: (1) In case a contract has been
breached under Section 82, the aggrieved party may re lize from the party
who has broken the contract, the actual loss or damage suffered by him/her
a result of such breach of contract of the loss or damage, which the
contracting parties had anticipated at the time of signing the contract.
(2) In case the contract provides that any specific amount or
compensation shall be paid in the event of breach of contract, the aggrieved
party may recover from the other party a reasonable mount not exceeding
52
that amount.
(3) In case the amount of compensation under Sub-section (2) is
not mentioned, the party making a claim for such compensation may realize
a reasonable amount in consideration of the direct and actual looser damage
that has resulted form the breach of contract, or in consideration of the
breach of contract, or in consideration of the breach of contract, or in
consideration of compensation. No compensation may be recovered for any
indirect or imaginary loss or damage.
(4) In case a contract has been signed for completing any work
within a specific period, and in case provision hasbeen made for payment
of compensation under Sub-section (1) for failure to complete that work
within the specific period, the party paying compensation may request for
extension of the period for completing the contract in proportion to the
amount paid by him/her as compensation.
84. Compensation in the event of cancellation or termination of
contract: (1) In case a contract is terminated with the mutual consent of
both parties or it is no longer necessary to perform the contract under this
Act or other prevailing laws, or in case the contract is made void under the
law or becomes void or cancelled under this Act, after one party has already
received some amount in cash or in kind or any other benefit from the.
other party as per the contract, the cash or goods which have to be refunded
after adjusting the accounts until the term of the contract expires from the
amount paid in cash or in kind shall be refunded. In case any service or
benefit other than cash or goods has been provided, th beneficiary must
pay a reasonable amount to the other party in consideration thereof.
……..∝
∝ Deleted by the Act Amending Some Nepal Acts, 2064
53
(2) In case it becomes necessary to initiate legal action owing to
the non-refundment of the amount paid in cash or kind or the non-payment
of amount under Sub-section (1), the concerned party may also realize
reasonable expenses incurred for the purpose.
85. Right to recover a reasonable amount: The aggrieved party may claim
payment in proportion to the work performed or the amount paid by
him/her in cash or in kind in any of the following circumstances;
(a) In case the contract is terminated due to the mistake of the other
party at a time when he/she has already completed th work to be
performed under the contract or was performing it;
(b) In case the other party utilizes any service or c mmodity that has
been given to him/her without the clear intention of giving it free of
cost.
86. Execution of contract as stipulated (Specific performance): (1) In
case the cash compensation paid in consideration of the actual loss or
damage suffered by the aggrieved party as a result of breach of contract is
not reasonable or adequate, the aggrieved party may demand the execution
of the contract as stipulated specific performance i stead of making a claim
for compensation.
(2) Notwithstanding anything contained in Sub-section (1), no
claims for execution of the contract as stipulated specific performance shall
be heard in any of the following circumstances;
(a) In case the amount paid in cash as compensation for breach of
contract is adequate;
(b) In case the court can not supervise whether or not the work to
be performed under the contract has been actually performed;
54
(c) In case the contract has been signed for providing services
relating to personal expertise, skill or knowledge;
(d) In case the situation is - uch that the contract can not be
executed as stipulated;
(e) In case the party violating the contract him/herself demands
that the contract be executed as stipulated.
87. Power of the judiciary to issue orders: (1) In case it becomes
impossible to execute the contract because any party about to take any
action or behave in a manner contrary to the nature of the contract, the party
.aggrieved by such action or conduct may file a complaint with the
Appellate Court to stay such action or conduct.
(2) In case a complaint is filled under Sub-section (1), the court
may issue an appropriate order to any party to immediat ly stop his/her
specific action or conduct with a provision to settle the dispute resulting
from that contract according to the contract or prevailing law,
notwithstanding, anything contained in prevailing law.
(3) In case such order is issued, the aggrieved party may also
realize the additional loss or damage resulting from the failure of the other
party to comply with the order issued under Sub-section (2).
Chapter- 13
Miscellaneous
88. Prevailing law to be obeyed: In case prevailing law prescribes that any
specific procedure must be followed for executing ay specific contract, or
that any specific contract, must be registered at any government office, a
contract signed without fulfilling such formalities shall not be valid.
89. Limitations: (1) In case prevailing law prescribe any specific lmitation
55
in respect to any specific contract or any specific matter relating to
contracts, such time limits shall be applicable.
(2) Complain in respect to the following contracts or matters
other than those mentioned in Sub-section (1) shall not be heard unless
these are filed within the limitation as mentioned hereunder;
(a) In the case of void a contract, to have them declar d void at
any time;
(b) In the case of a voidable contract, within a yer from the date
when the party that can have the contract declared void learns
about the reason for having the contract declared to be void;
(c) In the case of contracts mentioned in Chapter 7, within two
years from the date of emergence of the reason for filing a
lawsuit;
(d) In the case of any other claim under this Act, wi hin two years
from the date of emergence of the reason for filing a lawsuit
for such a claim.
90. Repeal and saving: The Contract Act 2023 (1966), and the Chapter on
Bailment and Deposits of the Muluki Ain (Legal Code) have been repealed.