Legal Drafting · Chapter 4
Study notes aligned to the official NEB syllabus.
A contract paper (करारनामा) is the written record of an agreement. The parties want the agreement to be legally binding. This means the law will enforce it if one side fails to perform. In daily life people make many agreements. But not every agreement is a contract. The Muluki Civil Code 2074 draws the line clearly. An agreement becomes an enforceable contract only when certain essential elements are present. If a document misses even one of them, a party may be left with no remedy. So the draftsperson of a contract paper works backward from these elements. The drafter makes sure each element is visible on the face of the document.
The first element is a lawful offer and its acceptance. The two sides must genuinely agree on the same thing. Suppose A offers to sell his motorcycle to B for a stated price. B accepts those exact terms. There is now a meeting of minds. But suppose B instead says he will pay a lower price. That is a counter-offer, not an acceptance. No contract exists yet.
The second element is the free consent of the parties. Free consent means consent given without coercion (करकाप), undue influence, fraud (झुक्यान) or misrepresentation. Where consent is not free, the Code makes the contract voidable. Voidable means the party whose consent was wrongly obtained may choose to cancel it. For example, a lender may force a borrower to sign a deed by threatening him. The borrower may later have that contract set aside. This is because his consent was obtained by coercion.
The third element is that the parties be competent. Competent means of majority age, of sound mind, and not otherwise disqualified by law. A contract signed by a minor, for example, is generally not enforceable against the minor.
The fourth element is a lawful consideration and object. Something of value must pass between the parties. The purpose must also be one the law allows. An agreement to pay someone to commit a crime has an unlawful object. The court will not enforce it.
The fifth element is certainty and possibility of performance. The terms must be clear enough to be carried out. So an agreement "to sell some land at a fair price later" is too vague to enforce.
A well-drafted contract paper makes all of this concrete. It names the parties. They are usually called the first party (पहिलो पक्ष) and the second party (दोस्रो पक्ष). It states the subject of the agreement. It sets out each party's rights and duties in numbered clauses. It fixes the consideration. It fixes the time and manner of performance. It provides for what happens on default. It closes with the signatures and the date. A Grade 12 student should be ready to draft common commercial examples. These include a house-rent contract (घरभाडा करारनामा), a sale agreement, and a service contract.
An advance payment deed (बैनाबट्टा) is made when parties agree to a transaction. This is most often the sale of land or a house. The buyer pays part of the price in advance (बैना) as earnest money. Earnest money is a sum paid to show the buyer is serious. The balance and the final deed follow within a fixed time. The बैनाबट्टा sits between a mere spoken understanding and the completed sale. The bargain has been struck. But the main deed (राजीनामा) has not yet been made and registered. The purpose is to bind both sides to that bargain in the meantime. Then neither side can simply walk away. The buyer gets time to arrange the rest of the money. The seller gets time to clear the paperwork.
Consider a realistic situation. Rambahadur agrees to sell his plot to Haribahadur for a fixed total price. Haribahadur is confident but cannot pay the whole sum today. So he pays a portion now as बैना. The two then sign a बैनाबट्टा. It fixes a date by which the balance will be paid and the राजीनामा made. The deed protects both sides. If Haribahadur fails to pay the balance by the date, he forfeits the advance. If Rambahadur refuses to make the sale, he must return the advance. The return is commonly doubled, as agreed. A careful बैनाबट्टा fixes the total price, the amount already paid, the balance due, the deadline and the consequences of default. So it prevents a very common dispute. That is the dispute where one side later claims the price or the terms were different.
An exchange deed (सट्टापट्टा) records a transaction where the parties exchange one property for another. There is no buying and selling for money. For example, two owners may swap plots of land. The deed is useful because it lets people get property that suits them better. The new property may be land nearer their home. It may be land of a more convenient shape. It may be land next to land they already farm. All this is done without the trouble and cost of a cash sale and a separate purchase. Here is an example. Rambahadur owns a plot close to Haribahadur's house. Haribahadur owns a plot close to Rambahadur's fields. Each may value the other's plot more than his own. A सट्टापट्टा lets them simply swap. The law treats each party as having transferred his plot to the other.
The deed must name both parties. It must describe each property given in exchange. Each description needs the plot number (कित्ता नं.), the area (क्षेत्रफल) and the four boundaries (चार किल्ला). The deed must state that the two properties are exchanged. It must record any balancing amount paid where the values differ. If one plot is worth more, the owner of the cheaper plot may pay the difference in cash. The deed then declares that from its date each party holds the property received as its own. No claim by the other survives. The deed is signed before witnesses. It is dated. In practice it is registered in the Land Revenue Office (मालपोत कार्यालय). Then the change of ownership appears in the public record. Like a sale deed, an exchange deed deals with valuable immovable property. So completeness and an accurate schedule are essential.