Note of CHAPTER 5: ISSUES ON CONSTRUCTION, from exam perspective (cursory note).
CHAPTER 5: ISSUES ON CONSTRUCTION
a) Deeds and Wills: -
In simple meaning deeds are documents that transfer interest, right, profit and create obligation which is binding in nature. Deed is a legal document which is about transferring of ownership while you are still alive.
Whereas wills include every writing making a voluntary posthumous (after death) disposition of property. Wills is a legal document which comes into play only after someone passes.
Section 2(a) of Interpretation of Laws Act 2010 defines will as, “shall include a codicil and every writing making a voluntary posthumous disposition of property.”
As per Muluki Civil Code 2074 B.S. there are different types of deed, which are:-
- Deed of Consent (section 79).
- Deed of adoption (section 177).
- Deed of partition (section 216).
- Deed of guardianship (section 145).
- Deed of usufruct (section 354).
- Deed of mortgage (section 358,436).
- Deed on relinquishment of partition share (section 215).
- Deed of trust property (section 339).
Deed of gift (section 410).
Provision on interpretation of deeds
Firstly, the court relies on the definition of The National Civil Code (Act) 2074 B.S. for the interpretation of the deed and wills and if such provision has not been mentioned then it goes to the definition of Kanoon Vyakhya Ain, 2010 (Interpretation of Laws Act 1954) .
While interpreting deeds one need to look at the context and circumstances and along with that the intention of the parties as well.
Similarly, at the time of interpretation of Wills the words written in Wills is adhered and the intention of the person who has written the Will is ascertain. And to interpret the Will such written document is read as a whole from top to bottom. Furthermore, the court applies the Armchair Rule for interpreting the Wills.
The National Country Code (Act) 2074 B.S. provisions on Deed and Wills are: -
Section 59(2).
Section 258.
Section 463 to section 475.
Section 476.
Section 477.
Section 489.
Section 716.
Section 38.
Section 316.
Section 406(4).
Section 411.
Section 414(3)
b) Constitution
Constitution of Nepal 2072,
Article 306(2): The legal provision related to the interpretation of laws, shall subject to the provisions of constitution applied to the interpretation of this constitution in the same manner as those provisions applied to the interpretation of Nepal laws.
There are certain principles which are applied while interpreting and construing the constitution. They are: -
1. Textual: - If the meaning of the words written in constitution is clear then the decision must be done by being based on such textual meaning of law.
2. Historical: - It is the basis of applying the strict construction or interpretation. Here the words of constitution along with knowledge of history and time in which such words are written is taken into consideration.
3. Functional: - it is also called structural. It is believed that the constitution is a functional document therefore one has to look at the functional aspect of the constitution whenever there arises an issue in the construction of the constitution.
4.Doctrinal: - it is based on prevailing practice or opinions of legal professionals. Here doctrine of precedent is interpreted, and the credit is given to latest decisions while construing the words of constitution.
5. Prudential: - this interpretation of constitution is inspired by sociological approach of jurisprudence. It analyzes the cost and benefit then chooses the best outcome for construing the constitution. Here the judge role is to balance the conflicting interest and traced and decision is chosen by being based on a factor external to law.
6. Equitable: - is also called ethical interpretation. Here the decision is based on in a sense of justice where the judges focus on creating the equity as much as possible by interpreting based on what is right and wrong regardless of what is written in the law.
7. Natural: - it is inspired by Natural Approach of jurisprudence. In interpretation morality should be put in central and interpretation is based on what is likely to occur.
Other principles of construction of constitutions are: -
- Principle of literal constitution.
- Principle of progressive construction.
- Principle of liberal construction.
- Principle of mandatory and directive construction.
- Doctrine of harmonious construction.
- Doctrine of necessity.
c) Negotiable Instrument, Premium
Negotiable Instrument are defined as a transferable signed document that promises to pay the bearer a sum of money at a future date or on-demand.
It is also considered as movable property by the law of Nepal. They are also used in substitution for money.
The types of Negotiable Instruments are: -
- Promissory notes.
- Bill of exchange.
- Cheques.
The National Civil Code (Act) 2074 section 254(d).
Case: -
- Himalayan Bank Ltd. Vs. Nepal Rastra Bank, Negotiable instrument, cheques are treated as contract for interpretation.
d) Special Provision of an Act
If there are special provision within the Act including special definitions, proviso, expansion, exception then the court at the time of interpretation needs to apply those intrinsic aid.
To take into consideration the special provision of an act is regarded as general rule of interpretation. Courts try to be cautious at the time of taking this special provision of an act at the time of construing of Act.
e) International Treaties and Conventions
Vienna Convention on Law of Treaties 1969:
- Article 31
states that treaty should be interpreted in good faith in accordance with ordinary meaning and in the light of object and purpose of such treaty.
- Article 32
If the article 31 general provision of interpretation of treaty is not able to interpret the meaning of the words of this treaty, then one need to look at the preparatory work of treaty and the circumstances in which such treaty comes into conclusion.
In Nepal,
Section 9 of Treaty Act 1990 has the provision regarding international citizen convention application to country Nepal.
Article of Constitution of Nepal 2072.
f) Trade and Contracts and their terminology
g) Restrictive Construction
This principle suggests that there are some demarcations which is set by the law to interpret the statute. If the definition of a word starts with ‘means’ it is said to be restrictive.
By meaning the concept of restrictive does not mean itself bad or narrow.
The principle of restrictive construction is based on three criteria: -
- Considering the consequence
- Presumption against change in law.
- Mens rea in statutory offence.
h) Prevent Evasion or Abuse
In order to prevent evasion, one need to interpret by looking at the intention and object of the statute. At the time of interpreting, one need to interpret in a way that it must avoid the fraudulent evasion. Benefit of doubt goes to taxpayer.
Consideration of public policy becomes a guiding principle in interpreting statutes to avoid evasion.
I) Construction to Avoid Collusion with Other Provision
There may arises collision of provision within the same statute and collision of provision of different statutes.
This is also expressed as: -
- Intra Statute Collision.
- Inter Statute Collision.
J) Exceptional Construction
Generally ordinary rule/literal rule is followed by the court at the time of interpreting laws. In exceptional construction, the court modifies the meaning of words or even the structure of sentence to find out the legislative intent.
At the time of exceptional construction, it can be done by going beyond the rule of grammar and giving an unusual meaning to a particular word.
