Kolkata Kali I

I have titled this post Kolkata Kali to pay tribute to the city that has done so much to promulgate the worship of the Goddess Kali. My father a devout worshipper of the Goddess often tells me, “to truly acquiring her blessings one has to visit Kolkata and once there one has to set foot on the sacred grounds of the Kali Temple in Dakshineswar”. It is something that I look forward to doing fairly soon. Much of what I have learnt of the Goddess Kali is from him and I hope to pass the knowledge on to my daughter.

It is only fitting that we start with the Kali Temple in Dakshineswar where the worship of the Goddess Kali is centered. It is located in the state of West Bengal where many of the saints and sages who have attained the highest form of realization by worshipping the Goddess Kali once lived.

The Dakshineswar Temple was built by Rani Rasmani (1793 – 1861) a lady of substance, who according to most sources was born in a lower caste family of little means. It is fair to say that her early life wasn’t at all easy. Despite her humble beginnings she was very beautiful and in time she married a wealthy man.

Rani was a devout worshipper of the Goddess Kali and upon her husband’s death, she took on the duties of managing his estates and in so doing built the Dakshineswar Temple that stands tall to this very day. Its grounds have been graced by the presence of the most learned authorities in the field including Swami Ramakrishna and his disciple Swami Vivekananda.

Rani Rasmani was a woman of some fortitude. Bearing in mind that she lived at a time when education was not made available to women, especially women of lower castes, and the common perception was that the place of a woman was beside her husband, she managed to create something that has become known in the farthest corners of the world and is valued for both its extrinsic and intrinsic contributions.

Within the compounds of the Temple there is a main temple and twelve Shiva Temples and it is symbolic of the relationship between Shiva and Shakhi. The former is represented by the linga and the latter is represented by the yoni and this nexus is the centerpiece of all Hindu religious rites and rituals that originate from the Indus Valley Civilization or the Mohenjo – Daro and Harappa civilizations.

From all accounts Dakshineswar generates or reverberates with harmonious vibes that echo throughout the grounds and the distinction between the Shiva Sects and Vaishnava Sects that pervade many other places of religious worship appear to vanish as soon as one steps into this holiest of places.

I have in the past had the opportunity to liaise with traders in Bengal and others who have been on a pilgrimage to Dakshineswar and all of them have told me similar stories. Some of them have even told me stories of an enchantingly pretty lady clad in a white saree adorned with exquisite jewelry that they’d met during prayers in Dakshineswar and one or two of them have actually said that during prayers, when they have worshipped the Goddess with a heavy heart, laden with troubles, the lady in the white saree had appeared to deliver them from their troubles. These of course were men who worshipped the Goddess with a great deal of sincerity.

Persons of all religions are welcome to visit the sacred grounds of Dakshineswar and there is a great harmony that prevails. There are no signs or traces of religious discord or intolerance.

North of the Kali Temple there is a temple dedicated to the worship of Krishna and Radha and it is not uncommon to find devotees boisterously chanting “Hare Krishna Hare Krishna, Hare Rama Hare Rama”. Like the Kali Temple, the Vishnu Temple (Krishna is an avatar of Vishnu) is built on an elevated platform.

There is an interesting story about the statue of Krishna that is worshiped in the temple. While the priest of the temple was carrying the statue, three months after the temple was built, he slipped and fell and in the process dropped the statue. The statue fell to the ground and one of its legs was broken.

Rani Rasmani when she heard of the mishap was extremely disappointed because it is considered an ill omen to worship a broken statue and the priests suggested that they immerse the statue in the waters of the Holy River Ganges.

A distraught Rani was about to agree when Swami Ramakrishna himself intervened. He said “what do you do when a person breaks his leg?” …. “you send him to the doctor”. Therefore there was no need to immerse the statue in the waters of the Ganges and instead he told the priests to have the leg fixed and return the statue to its original place. The priests did just that.

Copyright © 2017 by Dyarne Ward

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Elements in a Contract XXI – Remedies – Damages I

Remedies for a breach of contract are divided into common law and equitable remedies. Common law remedies are divided into:-

i) Damages

ii) Restitution

Damages

In Robinson v Harman (1848) it was held that where a party sustains loss by reason of a breach of contract, he is, so far as money can do it to be placed in the same situation, with respect to damages, as if the contract had been performed.

In order to be awarded damages the aggrieved party must satisfy the three following conditions: –

i) The party has suffered some type of loss as a result of the breach.

ii) The loss is recognized as a loss that gives rise to compensation.

iii) The loss must not be too remote or must be directly foreseeable see The Wagon Mound (1)

Loss can be divided into financial loss or pecuniary loss and non-financial or non-pecuniary loss as in instances where the defendant suffers from a mental illness for example in the case of Condor v Baron Knights (1966) where the plaintiff suffered from a mental illness as a result of long hours of practice.

In Addis v Gramophone Co Ltd (1909) the plaintiff was employed by the defendant company in Kolkata. He was subsequently wrongfully dismissed and as a result went through a great deal of mental anguish from being shunned or avoided by the British Community in Kolkata. He brought an action against the plaintiff for loss of earnings (income) and for mental distress. The court held that the plaintiff was entitled to be compensated for the loss of earnings but he was not entitled to be compensated for mental distress.

The decision in Addis v Gramophone Co Ltd (1909) has to be looked at in light of the earlier case of Hobbs v London and South Western Railway Co (1875). The plaintiffs boarded a train that failed to deliver them to the correct destination and they sued as a result. It was held that in addition to the plaintiffs being able to recover for breach of contract, they were also able to recover for the physical inconvenience of having to walk to their destination.

Part of the problem with regards to mental illnesses or mental distress is the difficulty in determining the monetary equivalent of mental illnesses or mental distress and there is no way to estimate or calculate damage resulting from mental illnesses or distress or translate it into monetary terms.

In Bailey v Bullock (1950) the plaintiff was forced to live temporarily in a smaller house because the defendant firm had failed to recover his house. The court held that the plaintiff should be compensated for the discomfort he’d incurred by living in a smaller home.

In Diesen v Samson (1971) the defendant was a photographer who was hired to take photos of the plaintiff’s wedding but for some reason or other the defendant failed to turn up. The distressed plaintiff sued and the court awarded her damages for not being able to have any wedding photographs.

In Jarvis v Swans Tours Ltd (1973) the plaintiff had paid for a holiday aboard and had based his decision on what had been printed on a travel brochure. The plaintiff however, after he had arrived at the destination, realized that the holiday was nothing like what had been advertised in the brochure and he sued. The Court of Appeal held that the defendant was not only entitled to be compensated for the monies he had paid but was also entitled to be awarded some form of damages for the disappointment that he had suffered.

In Jackson v Horizon Holidays (1975) the plaintiff booked a holiday with his family aboard based on what had been advertised. When they arrived at their holiday destination, they found that the living accommodations were nothing like the advertisement and the conditions were unsatisfactory. As a result, the plaintiff sued for compensation not only for himself but also for his wife and family. It was held that the plaintiff was not only entitled to recover for the disappointment that he’d suffered but was also able to recover for the disappointed incurred by his wife and children.

In Heywood v Wellers (1976) the plaintiff was being stalked by a former lover and she approached the defendants, a solicitors firm to take out an injunction against her stalker. The defendants negligently failed to take out the injunction and as a result the harassment continued and the plaintiff suffered much distress. The court held that the plaintiff was entitled to be compensated for the distress that she had suffered and was accordingly awarded damages.

In Ruxley Electronics and Construction Ltd v Forsyth (1995) the plaintiff employed the defendant to construct a swimming pool that was deep enough to allow the plaintiff to dive – a hobby that gave him a great deal of pleasure. The defendant did construct the pool but not to the specifications that were stipulated or the depth that was required and the plaintiff sued on the grounds that he would not feel save diving. The court awarded the plaintiff damages for the loss of pleasure. The swimming pool was no doubt constructed to allow the plaintiff some time to enjoy the things that he cherished and the fact that he could no longer feel safe doing so gave rise to damages.

In Perry v Sidney Phillips and Son (1982) the plaintiff employed a surveyor to inspect a house prior to purchase and was assured that the house was in good order. Upon purchase the plaintiff discovered that the house was in need of repair and many of the basic amenities that one would take for granted weren’t working or functioning properly. The court held that in addition to recovering for the lower value of the house the plaintiff was also entitled to damages for the physical discomfort that he’d suffered by being forced to live in a faulty house.

Similarly, in Farley v Skinner (2001) the plaintiff employed a surveyor to inspect the land where he was about to construct a home to allow him to enjoy the pleasures of the countryside after his retirement, with regards to noise caused by air traffic because the land was close to Gatwick. The surveyor upon inspection assured him that he would be able to retire in peace and quiet. The plaintiff had his home constructed and when he moved in he realized that the noise resulting from the air traffic was unbearable and he sued. The plaintiff was awarded damages for distress that resulted from aircraft noise because he had specifically employed the surveyor to assess the impact of aircraft noise.

Copyright © 2017 by Dyarne Ward

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Elements in a Contract XX – The Misrepresentation Act 1967

The Misrepresentation Act 1967 also governs the law on misrepresentation. S2(1) of the act states that: – Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true.

Under s2(2) of the act the court has a discretion to award damages instead of rescission. “Where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to rescind the contract, then, if it is claimed, in any proceedings arising out of the contract, that the contract ought to be or has been rescinded, the court or arbitrator may declare the contract subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party”.

When there has been breach of contract, especially for fraudulent misrepresentation or a breach of s2(1) of the Misrepresentation Act 1967, the courts are more inclined to award damages. In cases of negligent misstatements damages are awarded to put the parties back in the position they would be in, had they not entered into the contract and it is not to allow the aggrieved party to profit from the deceit of another. Therefore, the damages that are awarded may at times be less than the damage that was suffered or incurred.

In Doyle v Olby (Ironmongers) Ltd 1969 for example, the plaintiff (claimant) purchased a business from the defendant and entered into the contract based on statements made by the defendant that inflated the profits of the business and the scope of the business. When the plaintiff discovered that these statements were untrue he brought an action against the defendants on the grounds of misrepresentation and his claim was upheld. The court held that in instances of misrepresentation the plaintiff was entitled to claim for damages that directly resulted from or was directly caused by the fraudulent misrepresentation regardless of whether the loss was foreseeable or otherwise.

In the all the three categories of misrepresentation i.e. fraudulent misrepresentation, negligent misstatement, and innocent misrepresentation the court has a discretion to either award damages or to allow rescission.

In assessing damages the court will take into account the remoteness of the damage. The common-law test to assess the remoteness of damage for negligent misstatements is the test given in the Wagon Mound (1) (1961). The defendant’s vessel the Wagon Mound was docked in a wharf in Sydney and unknown to the defendant the boat leaked oil and the resulting fire caused damage to not only the defendant’s vessel but also to the wharf and to 2 other vessels. The court had to determine the scope of the defendant’s liability. It was held that the defendant was only liable for the damages that he could foresee and the court found in favor of the defendant supplanting or overruling the earlier decision in Re Polemis.

In Re Polemis (1921) one of the men employed to load and unload cargo from a ship dropped a plank into the ship’s cargo hold and the plank struck a flint which caused a spark that came in contact with petrol fumes and the resulting fire spread to the hull of the ship and set the whole ship on fire. The court had to decide as to the extent of the defendant’s liability.

It was held that the defendant was not only liable for the damages that he could foresee but was also liable for all the other damages that resulted as a consequence of his action(s) regardless of whether the damage was foreseeable of otherwise. It suffices that the defendant caused the initial act which set in motion a chain of events that resulted in damage that would otherwise not have been foreseeable by a reasonable man.

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The Tamang Shaman

The old weathered shaman sits idly on a block of land that he calls his own, handed down to him no doubt by his predecessors who had either purchased the land or were granted the title to it, for services rendered during colonial times. He stares out in the open, seated on a rickety stool on the verandah of a hut surrounded by the banana trees that he grows for a living. The sun is high and its luminous rays beat relentlessly down on the rugged graveled land below.

The sounds of distant drumming echo over the horizon and he hums a little tune. In the valley below a group of young men are beating on a set of tin pan drums. He sings of a young man, on the verge of death, whose soul leaves his body and drifts towards the clouds and there he meets a young maiden and he is instantly taken in by her. His soul returns to his body and the maiden follows him back.

The clock strikes twelve and it will soon be time for lunch. He gets off the stool and makes his way to the rear of the hut where he has a chicken coop and selects a nice fat black rooster. It would do nicely, he says to himself.

He takes the rooster out of the coop and tucks it under his arm. He then walks into the hut to the wall where his knife hangs silently still, its blade protected by a leather sheath. He grabs it and tucks it under his belt and walks out the front door. He returns to the stool and as he sits down he pats the rooster on the head.

Minutes pass by and he hears someone removing the latch on the front gate. A loud creak ensues as the gate is pushed open, followed by the sounds of footsteps. “The boys are here” he says to the rooster and true enough three young men armed with tin pan drums and wooden sticks which they use to beat the drum with, walk up to him. The utter a customary greeting and he responds in the time honored manner.

He stands up and walks towards a designated spot right in the middle of a clump of banana trees and the youths follow closely behind. The hour is just past twelve and the hot afternoon sun is blaring down on them. He looks at the young men and asks them to begin. The boys respond by beating on the drums.

The man starts dancing with the rooster tucked beneath his arm. Then without warning he removes the knife that is tucked beneath his belt from its sheath and in one smooth fluid stroke severs the head of the rooster from its body. The music stops and he hands the bloodied remains to one of the young men while he buries the head of the rooster at the foot of one of the banana trees that appears slightly taller and sturdier than the rest.

The man and the boys make their way back to the hut where they remove the feathers from the carcass before the meat is cut up and cooked. It looks like chicken curry is on the menu.

That night, the front of his hut is filled with villagers, some of whom have brought gifts of fruits and other homemade items with them. The boys from the afternoon are there again beating on their tin pan drums. Incense sticks are lit and the air is filled with the scent of burning camphor. Benzoins are set alight and as the drum beats get more intense the man inhales the smoke from the benzoins.

Soon after his body starts to shake and tremble and his facial contours change. There is a transformation and he starts to speak in another voice, slightly high pitched and more feminine. Suddenly the drum beats stop.

He points to one of the drum beaters and the young man approaches him. “Who’s first?” he asks and the young man beckons to a couple who are standing close by. They approach the man and tell him their troubles. He stops and he ponders on what he’s heard and after a minute or two gives them a solution. The pair thank him and leave.

The next person in line then makes his or her way up to him and it continues well into the night. At the stroke of midnight, the man wraps up proceedings and returns to his normal self and the three drummers head for home. The next morning the man wakes up and goes about his business without giving much thought to the events of the previous day. As far as he is concerned it was just another day in the life of a Tamang shaman.

Copyright © 2017 by Dyarne Ward

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Elements in a Contract XIX – End of contract – Misrepresentation III

There are certain contracts which are known as contracts of good faith and the most common example of these type of contracts would be insurance policies whereby the party taking out or purchasing the policy is required to divulge personal details without concealing or hiding any facts. Failure to divulge the necessary information will allow the other party to rescind the contract without recourse to damages. The principle in Latin is called “Uberrimae Fidei”.

In Carter v Boehm (1766) the governor of Fort Marlborough in Sumatra took out an insurance policy with Boehm in the eventuality that the fort was attacked. The fort was built by the British East India Co. At the time the policy was taken out there was a possibility that the fort may be attacked on two fronts – by the inhabitants of the island and the French who were keen to exert their authority in the area.

Both conflicts revolved around different issues. The locals were trying to take back what was rightfully theirs and the French were trying to gain access to lucrative trading routes. The matter before the courts was to decide whether the second risk i.e. the risk of a French invasion was insured or if both risks were insured?

The court decided that in contracts of good faith the following details must be disclosed, prior to entering into the contract:-

i) All material facts must be disclosed

ii) Material facts are facts that would influence the decision of the insurers as to whether the insurers will underwrite the risk or otherwise

iii) Facts that that the underwriter ought to know need not be disclosed

iv) Facts that the person applying for insurance did not know or that he or she wasn’t aware of need not be disclosed.

In summary, contracts of good faith require the disclosure of all the facts as they were known to the parties at the time the contract was entered into. The principle not only includes personal insurance but all other types of insurance including many modern day financial instruments like the underwriting of letter of credits.

In International Management Group UK Ltd v Simmonds (2003) – IMG intended to acquire the rights to televise the annual Sahara Cup tournament held between India and Pakistan. In 1999 because of the Kargil conflict the Indian government refused to allow the Indian team to participate. IMG who had acquired the televised rights for 2000 fearing another cancellation insured the contract. During the negotiations IMG failed to inform the insurers that there were rumors that India might pull out of the tournament. India subsequently pulled out of the tournament and IMG made a claim. The insurers argued that IMG was aware that there was a possibility that India might pull out and they did not inform the insurers of this and therefore IMG had not acted in good faith. The insurers were successful. It was held that in contracts of good faith the party seeking coverage was under a duty to disclose all material facts.

In Street v Derbyshire Unemployed Workers Centre (2004) an employee was caught making damaging disclosures about her manager. She later refused to cooperate with an independent investigator and was subsequently dismissed. The employee claimed that her disclosures were made in good faith and brought the matter before the Employment Appeal Tribunal (EAT) who dismissed her claim and concluded that her disclosures were motivated by personal antagonism. She appealed and the court agreed with the EAT and concluded that a disclosure cannot be made in good faith if there was an ulterior motive to the disclosure.

A statement may be true at the time it was made but may later turn out to be false due to a change in circumstances. In With v O’Flanagan (1936) a doctor was selling his practice and at the time of sale he informed the purchaser that the practice raked in £200 per annum. The statement was true at the time the contract of sale was negotiated but the doctor subsequently fell ill and as a result was unable to conduct clinic and the number of patients dwindled. The purchaser realizing that the practice was not making as much as he’d been told sued on the grounds of misrepresentation.

It was held that when a statement is true at the time it was made but a subsequent change in circumstances renders it untrue, than keeping silent about the change in circumstances will amount to a misrepresentation.

There are also occasions that the party intending to sell or dispose of an item or a property may only reveal half the facts. Under normal circumstances the rule in Dimmock v Hallett (1866) will apply and these partial disclosures are treated as flourishing descriptions or mere puffs or sales talk.

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Elements in a Contract XVIII – End of contract – Misrepresentation II

A mere statement of fact though it may sound like a misrepresentation does not in actual fact constituent or amount to misrepresentation.

In Bisset v Wilkinson (1927) the plaintiff purchased some land from the defendant for the purposes of sheep rearing. The land had never before been used for the intended purpose but during negotiations the defendant had told the plaintiff that he thought that the land may be able to support up to 2,000 heads of sheep. As it turned out the land was unsuitable for sheep farming and the plaintiff sued.

The court held that a misrepresentation must be distinguished from a mere statement of fact. With the sale of certain items, unless the defendant professes to have special knowledge in the area, as in the case of Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd (1965) – where the defendant professed to have specialized knowledge of Bentley cars, it is difficult for either party to know the outcome. It was decided that there was no misrepresentation.

In Smith v Land and House Property Corp (1884) the defendant sold the plaintiff a hotel which was occupied by a tenant. During the negotiations the defendant clearly stated that the tenant was a most desirable tenant and that he paid his rent on time every time and that he faithfully observed all the duties that is required of a tenant.

The plaintiff upon the purchase of the hotel discovered that the tenant was in arrears and was in the habit of being so and the only way that the plaintiff could secure any rent was by twisting his arm. The plaintiff sued on the grounds of misrepresentation and was successful. The court held that the defendant was in a position to know the truth and the fact that he said otherwise or willfully mislead the buyer was a misrepresentation.

In Edgington v Fitzmaurice (1885) the defendants, in their company prospectus stated that shares in their company were being offered to suitable purchasers in order to expand the company and the plaintiff purchased shares in the company in reliance of the promise.

The monies that were received from the sale of the shares however did not go towards expanding the company but instead went towards bailing the company out because it was in financial difficulties.

The plaintiff when he realized that the monies did not go towards the intended purpose, sued on the grounds of misrepresentation. The plaintiff was successful. The court concluded that the defendants had been fraudulent in the statements they made because the money was never intended to be used for the purpose that was advertised.

Mere puffs or sales talk however would not constitute misrepresentation. In Dimmock v Hallett (1866) during a sale by auction, Dimmock advertised his land as being fertile and improvable. The land it fact was abandoned and was more or less not fit for anything. The purchaser sued but the court held that a misrepresentation must be distinguished from a flourishing description which was what Dimmock’s statement was interpreted to be.

A statement will only be regarded as a misrepresentation if it prompted, induced or enticed another party to enter into a contract. In Redgrave v Hurd (1881) a solicitor purchased a partnership in a firm. During the negotiations he was told that the firm had an annual income of £300 per year when in fact the firm drew in no more that £200 per year. The solicitor was given an opportunity to look at the books prior to the purchase but he declined.

Upon purchase once he discovered that the firm’s income was not what he expected it to be, he sued on the grounds of misrepresentation. The court held that the solicitor was entitled to rescind the contract even if he had been given the opportunity to inspect the books prior to the purchase. The buyer had entered into the contract in reliance of the seller’s promise and if that promise turned out to be untrue, the buyer was entitled to withdraw from the contract.

In Attwood v Small (1838) the defendants had made statements inflating the earning capacity of their mines to the plaintiffs. The plaintiffs who had the intention of purchasing the mines employed independent surveyors to present their findings and they wrongly agreed with the defendants. The plaintiffs when they discovered the mistake brought an action against the defendants.

The plaintiffs were unsuccessful. They had purchased the mines in reliance of the surveyors’ statements and not the defendants. If the plaintiffs had relied on the defendants’ statements, they wouldn’t have appointed independent surveyors in the first place.

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Elements in a Contract XVII – End of contract – Misrepresentation I

Misrepresentation is a false statement that has induced another party to enter into a contract. In Curtis v Chemical Cleaning and Dyeing Co (1951), the plaintiff took her wedding dress into the dry cleaners to be cleaned. She was then asked to sign a document and when she queried the defendants as to the terms in the document, she was told that it exempted the defendants for being liable for the loss of beads or sequins, when in fact the document exempted the defendants from liability for any damage done to the dress.

When the plaintiff went to collect her dress, she realized that there was a stain on it that wasn’t there before. The plaintiff brought an action against the defendants and her claim was successful because she was misrepresented as to the nature of the document that she was signing.

In most instances or under most circumstances a person is bound by the terms of an agreement he or she has signed, unless of course, there was misrepresentation, fraud or some other special circumstances to prevent the signatory from being bound by the terms in the agreement – Wilton v Farnworth (1948) (High Court of Australia).

There are in general three types of misrepresentation: –

i) Fraudulent Misrepresentation

ii) Negligent Misstatement

iii) Innocent Misrepresentation

Fraudulent Misrepresentation: –

In Derry v Peek (1889) the company had via an act of parliament obtained the approval to operate steam-powered trams subject to a further approval by the Board of Trade. The company, under the impression that obtaining approval from the Board of Trade was a mere formality, advertised their intention to operate steam-powered trams and the plaintiff bought shares in the company in reliance of the companies promise. The approval from Board of Trade was not forthcoming as expected and the plaintiff sued on the grounds of misrepresentation.

The court held that there was no fraudulent misrepresentation and defined misrepresentation in the following manner: –

i) a false statement that is knowingly made

ii) the maker of the statement did not believe it to be true at the time he or she made it

iii) a statement made recklessly or carelessly without knowing if it was true or otherwise

Negligent Misstatement: –

In Hedley Byrne v Heller & Partners (1964) the plaintiff company had entered into a contract with a company called Easipower. Prior to entering into the contract the plaintiffs contacted Easipower’s bankers to check the company’s creditworthiness and they were given the all clear with an exclusion or an exemption clause that stated that the reference was given “without responsibility”.

Easipower subsequently defaulted on the payments that were due to the plaintiff under advertising contracts and the plaintiffs brought an action against the bankers. Under normal circumstances the bankers would be liable but the exclusion or exemption clause was valid and the bankers were held to be not responsible.

In Esso Petroluem v Mardon (1976) the plaintiff’s representative assured the defendant that his new petrol station would be able to sell at least 200,000 gallons of petrol per year. Following the representation, the local council made some changes to the site and as a result it was estimated that the sales would fall and would be lower than what was initially projected but the plaintiff’s representative failed to communicate the changes made by the local council and the ensuing changes in the estimated sales to the defendant.

As a result, the defendant fell in arrears and Esso Petroleum sued for the outstanding payment. The defendant made a counter claim and he was successful. In addition to negligent misrepresentation there was also a collateral contract in place in that the defendant had entered into the contract based on Esso’s estimates and projections.

Innocent Misrepresentation:-

Innocent misrepresentation refers to statements made that are not fraudulent or statements made by parties who believed them to be wholly and substantially true at the time the statements were made.

Silence however does not constitute misrepresentation. In Smith v Hughes (1871) the claimant made inquiries into purchasing some oats which he stipulated must be old because he intended to use it as horse feed and the defendant sold him some oats which in fact were not old as the claimant had stipulated but new. The defendant knew of the claimant’s requirements but kept silent on the matter. The claimant later, after purchasing the oats and realizing that the oats were not old brought an action against the defendant arguing that the oats were of no use to him and that there had been a mistake and that the defendant had made a misrepresentation.

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Elements in a Contract XVI – End of Contract – Mistake II

There are a few factors that influence a court’s decision when it comes to determining if a mistake had been made or otherwise. The mistake must precede the contract i.e. the mistake must be made prior to the contract coming into existence or before the contract is entered into. In Amalgamated Investment & Property Co Ltd v John Walker & Sons Ltd (1977) the seller sold the buyer a warehouse knowing that the buyer intended to redevelop the property. A day later the Department of Environment designated the property a listed building – a mechanism that is used to protect buildings of historic importance or significance.

The buyer brought an action in court to render the contract void on the grounds that a mistake had been made. The court held that there was valid and enforceable contract. At the time the parties entered into the contract neither of the parties knew that the building was to become a listed building.

The mistake must have induced the party to enter into the contract. In Couturier v Hastie (1856) a cargo of corn was on board a ship sailing from the Mediterranean to London. During the journey, due to extensive heat, the crew discovered that the cargo was going bad and sold the corn at the nearest port. In the meantime, the seller and buyer who were not aware of the fact that the corn had been sold, entered into a contract under the assumption that the corn was still on board the ship. It was held that the contract was void because the subject of the contract did not exist. In a contract for the sale of goods if the goods perished without the knowledge of the seller, at the time the contract was entered into, the contract is void.

The mistake could either be a mistake of fact or a mistake of law. In Hartog v Colin and Shields (1939) the defendants were in possession of hare skins which they intended to sell at a price per piece as dictated by custom but instead quoted the price as per pound. When the defendants realized their mistake, they tried to stop the sale and the plaintiffs sued. The court held that the contract was void. The defendants had made a mistake of fact.

In Kleinwort Benson Ltd v Lincoln City Council (1999) a bank had paid a local council for certain financial transactions which at the time of making the payments, the bank was under the impression that such payments were legal. It later turned out that the payments were illegal and the court ruled that the payments should be returned to the bank. The bank had made a mistake of law.

In addition to mistake as to the terms of the contract, mistakes can also include mistakes of identity. In Cundy v Lindsey (1878) the plaintiffs received an order by post for handkerchiefs from a Mr. Blenkarn whose address was the same as a highly reputable firm with a similar name (Blenkiron & Co) that was located on the same street, as the address Mr Blenkarn had provided. The order was signed in a manner that was identical to that of Mr. Blenkiron from the above-mentioned firm of Blenkiron & Co.

The plaintiffs thinking that it was Mr. Blenkiron who intended to purchase the handkerchiefs dispatched the goods and Blenkarn sold the handkerchiefs to the defendant. By the time the plaintiffs had discovered the mistake most of the handkerchiefs had been sold. The court held that there was no contract with Mr. Blenkarn because the plaintiffs had intended all along to deal with Blenkiron & Co.

In King’s Norton Metal v Edridge Merrett & Co (1897) the defendant, using an alias, ordered some goods by post using a company letterhead that he had created purporting to be a large company with various subsidiaries. The plaintiffs sent the goods on credit but the defendant never paid for them. The plaintiffs sought to recover the outstanding payment from the defendant and brought the matter before the courts. The court held that the plaintiffs had intended to enter into a contract with the defendant and that the contract was valid and enforceable. The defendant was liable.

In Shogun Finance v Hudson (2003) a rogue entered a showroom and agreed to buy a car on hire-purchase. The rogue pretended to be someone else and produced a driver’s license and other documents in the name of the person he pretended to be. The documents were in fact stolen.

He paid the down-payment of 10% and soon after sold the car to another person. Shogun Finance traced the car down to the new owner and sought possession of the car. The court held that Shogun Finance was entitled to reclaim the car and that the hire purchase agreement was void. Therefore, there was no title to pass and the new owners could not claim ownership of the car.

Copyright © 2017 by Dyarne Ward

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Uttara Huddar – Sharada V

In the days that have gone by since I last wrote about Uttara Huddar and her alternate personality Sharada, I have given a lot of thought to the matter and initially I was stumped. I’m not going to retract anything that I’ve said in the past and this post should be read in light of what I have already said. I eventually did stumble on what I think is the answer.

The fault does not lie with Uttara Huddar at all. I’m going to try and explain the phenomenon as best as I can and I have no doubt in my mind that it is indeed possession. While the researchers applied the correct scientific methods and approaches, they had failed to take into account the religious aspects surrounding the onset of the Sharada personality and the matter could have easily been rectified if the correct approach had been adopted.

I must admit that I was quite taken aback by the realization and thus far I was under the impression that it was a practice that was limited only to orthodox kshatriyas and the mantras that were used to seal the spell were known only to them. Obviously, I was wrong. Furthermore, I was also under the impression that it was only the remains of unmarried women or maidens that were used in the ritual and Sharada proves that, that is not the case.

There is a ritual, among certain kshatriya (warrior) clans, where they obtain the remains of an unmarried women, maidens who have died an unnatural death, usually as a result of accidents or murders but not death that is caused by natural circumstances, because the spirits of such women remain until the appointed time of death and use it or infuse the spirits of the dead women into items of a personal nature including items of worship that are peculiar or unique to them.

The spirit of the dead woman becomes their guardian spirit and is worshipped as such and treated with a great deal of respect and reverence. Such men have many restrictions placed upon them including refraining from smoking, drinking, vices and refraining from any type of sexual activity or promiscuity.

Everything has a price and the price that the spirit demands in return for her protection is extremely high. To the kshatriya the spirit is worth her weight in gold and she is his life and therefore the kshatriya will accede to all her wishes including making ritualistic sacrifices often of small animals in the manner that is predominant among shamans, if so required.

If for some reason the kshatriya cannot comply with the spirit’s request or fails or ignores his responsibilities, the spirit will possess, if not him, then one of his children. It is possession in the truest sense of the word.

A responsible kshatriya if he realizes that he is unable to comply with the spirit’s demands will return the spirit to the source or will free the spirit from the shackles the he has bound it with and beg for mercy and clemency from the Goddess Durga. Durga represents the most potent aspects of the feminine power and even if she forgives, the kshatriya is bound by the chains of eternal gratitude and servitude.

If the kshatriya complies with all the spirit’s wishes and has done all that is required of him, he normally passes the object on to one of his children before his demise and in this manner the object continues to gain power until such time as it is returned to the source.

However not all kshatriyas are noble and responsible and some just pass the object on to another person who may or may not be related to them, usually as a gift, and this is one reason why one should never accept religious objects as a gift, from another person because, under most circumstances, they won’t know or be aware of the unspoken and unmentioned conditions that are attached to it. Having said that it may not be a religious item at all and it may be a simple trinket like an item of jewelry that one wears on the person. The spirit in the item will then seek to possess the wearer.

I am going to recreate the facts as I see them from the time of Sharada’s death. At the time of her death, the girl was most likely cremated as is customary in the Hindu tradition. But at the time of cremation a certain part of her body was removed from her person, most likely a lock of her hair, and while the rest of the body was cremated as per customary requirement, the lock of hair was taken, and infused in an object but it was not done by a kshatriya. Kshatriyas will not touch the body of a married woman. It a great sin to do so.

It was most likely done by a shaman and if I was to hazard a guess by someone who attended to the body, not a member of Sharada’s family but someone in the graveyard and what he or she removed was later infused into an object to obtain the gifts of clairvoyance and other gifts that are related to shamans.

The object had, over time, been passed on, and somehow or other made its way into the hands of G.M. Huddar who was a known connoisseur of Bengali literature and Bengali artifacts. Having no idea what the object was and having mistaken it for some artifact, he kept it and Uttara Huddar who had the same interest in Bengali literature and Bengali artifacts as her father, was the most likely candidate to be possessed.

The easiest means to cure her would have been to discover the object that was infused with the spirit of Sharada and return it to the source or free the spirit. Now, because Sharada was highly devoted to Durga, her spirit, that was the essence of Sharada, simply acted in the manner the girl did when she was alive.

However, even if she had been cured i.e. if the spirit had been released from the object, Uttara would still be advised to remain devoted to the Goddess Durga for the rest of her life. As for the spirit that possessed Uttara, she became a potent aspect of the Goddess that was always trying to stir the unfortunate victim back onto the right path. The spirit is called Chandi.

Copyright © 2017 by Kathiresan Ramachanderam and Dyarne Ward

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Uttara Huddar – Sharada IV

The Sharada phases lasted from a day up to 6 weeks. The median duration was approximately 2 days but the average duration, because of two long phases that lasted 41 and 43 days, was slightly over eight and a half days.

Despite initially being unaware of each other both Uttara and Sharada over time began to drop hints that they were growing accustomed to each other. Uttara from what I have read so far appears to be an auspicious or fortuitous child.

I am going to revert back, temporarily at least, to Uttara’s parents. Prior to her birth Uttara’s mother had received intimation of being bitten on the foot by a cobra (Sharada died as a result of being bitten on the toe by a cobra) and she would withdraw her foot in fear whenever it happened.

Working along the same lines, Uttara’s father had a fascination for Bengali people and all things Bengali and it leads to me to the conclusion that Sharada’s parents whose names she gave as Brajanath Chattopadhaya (father) and Renuka Devi (mother) were G.M. Huddar and Manorama in their past lives.

According to Hindu marital customs all couples who are married in the orthodox Hindu manner remain married for 7 lifetimes. I tend to take it as an eternity because after 7 lifetimes they achieve either salvation or liberation and are not reborn. There are exceptions of course but the exceptions do not apply here.

These couples normally have the same children unless there is a cusp child i.e. a child that is born between two families (that is the best way I can think of describing these children).

So Brajanath Chattopadhaya and Renuka Devi had in addition to Sharada, 6 other children including Uttara. The number should correspond with the exact number of children G.M. Huddar and Manorama had minus the one child who was Sharada.

I don’t think Sharada was ever reincarnated, while her parents and her siblings were. She for some reason or other, being exceptionally devoted to the Goddess Durga, was spared the rigors of mortal existence. Having said that all cusp chidlren come under the auspice of the Goddess Durga.

Initially Sharada’s parents did not notice a pattern in Sharada’s appearance but later they realized that her appearance coincided with the 8th day of the waxing or waning moon.

In the Hindu calendar, these days are called Ashtami days and these days are particularly significant to the Goddess Durga. These are the days that are devoted to the worship of the Goddess Durga.

Maha Durga Ashtami is the most significant of all Ashtami days and it is the day, the Goddess Durga appeared in the form of Mahishasura Mardini to slay the buffalo headed demon Mahishasura (that is why buffalos are sometimes slaughtered during the festivities i.e. to reenact the slaying of the demon Mahishasura).

Though Sharada’s appearance did not coincide with Ashtami all the time it happened consistently or significantly enough to form a trend or a pattern. If I were to hazard a guess, I’d say that the Sharada personality would have been strongest on Maha Durga Ashtami.

Sharada gave the interviewers as much information as possible. For example, she wrote her husband’s name down as Swami Vishwanath Mukhopadhaya and wrote her father in-law’s name down as Nand Kishore Mukhopadhaya.

She gave details of how she had travelled from Burdwan (West Bengal) to Kalighat in Calcutta and how she had gone to Shivpur (Bangladesh) with her husband. From Shivpur she had gone to the Tara Devi Temple at Shikarpur (Bangladesh) by boat. She also told interviewers of her visit to the Hansheshwari Temple at Bansberia. All in all, she was a fairly-religious child.

She also mentioned that she’d had two miscarriages and that she had not given birth to any children. When she was 7 months pregnant with the 3rd child, a snake had bitten her on her toe while she was gathering some flowers and she fell unconscious. She was 22 at the time and died as a result.

I think that her death came as a shock and that she had appeared to spend some time with her parents who I suspect were on their 7th or last marriage cycle. Sharada wasn’t prepared or ready for death and maybe she just wanted to say her goodbyes.

Copyright © 2017 by Kathiresan Ramachanderam and Dyarne Ward

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