Hi Rajesh, I think, the contract act during amendment should also look at the rights of persons who are of unsound mind (due to any reason) as well at the time of contract and look at the support systems required by them on signing the contract.
I also dont agree with your proposal on a contract not being enforceable on the person who signed it with sound mind and later gets into an unsound mind. This risk is with any individual and not only with people with mental/intellectual disabilities. If at all a person chooses to provide an option at the time of contract as to enforce/not enforce the contract at a later stage when he becomes unsound, it shall be considered, at the risk of the person signing. At any situation the decision and rights of any individual shall be taken into account. The contract act need not explore the condition, cognitive abilities and lives of persons with disabilities. It is enough if the contract act looks at, whether the person just understands the contract with which he is associated. With respect to the debate on proving the soundness of mind at the time of contract, in a future date, as pointed out by Mr.Harish, it is not the responsibility of the person to prove it at a later date, nor can it be questioned at a later stage as the contract is been made only on the condition that the person is of sound mind while signing. Let the mechanism be equipped to ensure it in an unbiased way without demanding extra effort from the individual concerned and record it and i think, this could be done with every one, not just persons with mental/intellectual disabilities. Thanks and Regards Smitha.S.S On 13 July 2012 11:48, Asudani, Rajesh <[email protected]> wrote: > I agree with Rahul about not making the blanket presumption about > unsoundness of mind in case of certain disabilities and devising a workable > mechanism for determining the question at the relevant time i.e. the > signing of contract.**** > > However, I do not agree about the desirability of any amendment in the > contract act to say that a person is competent to contract irrespective of > soundness of mind, as it would be a greatly perilous position.**** > > ** ** > > I do propose however, to seek the amendment in the contract act to say > that a contract cannot remain enforceable against a person who having > signed it with sound mind subsequently becomes incapable of appreciating > the consequences thereof rationally on a continuing basis, i.e. becomes of > unsound mind.**** > > It goes without saying that the mechanism for arriving at such a > conclusion should also be unbiased and practicable.**** > > ** ** > > ** ** > > In fine, I agree that there are varying degrees of abilities and our > perceptions of abilities are also constitutive of those abilities, however, > there are and always will be certain > intellectual/psychological/neurological disabilities which would make a > person "of unsound mind" either episodically or generally.**** > > It is really tricky to deal legally with episodic nature of such > disabilities.**** > > ** ** > > ** ** > > *From:* rahul cherian [mailto:[email protected]] > *Sent:* Friday, July 13, 2012 10:33 AM > *To:* harish > *Cc:* Dlu South; Vaishnavi Jayakumar; Asudani, Rajesh; > [email protected]; Bhargavi Davar; Ratnaboli Ray; Soumitra > Pathare; Poonam Nataraj; Amita Dhanda; viakalathur sunder; MH Policy > Committee Secretariat; Sruti disABILITY CENTRE; Javed Abidi; > [email protected]; [email protected]; MHA digest; nami > india; Val Resh; Lavanya Seshasayee; Punitha Suresh; Vandana Gopikumar; > [email protected]; Lakshmi Ravikanth; BALM; Nirmal Thomas; > David Nash; Vivek Varkey; Vijayakumar E; [email protected]; > shetty chaitali; chidambaranathan; S P Simmachandran; Rajiv Rajan; > [email protected]; Nazir; Deepak Thanumalaya meenakshi nathan; > Vijayakumar Advocate; Porkodi; Ashok Kumar; sudha; Amba Salelkar; > [email protected]; The Spastics Society of Tamilnadu SPASTN; > Jayshree Raveendran; Janaki Pillai > > *Subject:* Re: A brief report on the discussion held yesterday on the > banking rights of Persons with Intellectual disabilities and persons with > mental illnesses**** > > ** ** > > Dear Harish, > > The example in point b mentioned in my email is taken word for word from > the Contract Act. The question of whether the party to the contract was of > sound mind at the time the contract was concluded is a question of fact and > normal rules of evidence will apply with respect to proving this. For > example, any witnesses to the execution of the contract may be required to > provide evidence. There are many judgments that have upheld this position. > It is to be noted that the concept of unsound mind in the Contract Act is > not a disability specific issue but broader as is evident from some of the > examples that Vaishnavi gave in her email.**** > > ** ** > > What we need to do here is to possibly find a formulation that can be used > to ensure that there is no blanket assumption of unsound mind (within the > meaning of the Contract Act) for certain types of disabilities. This > formulation should also minimize the discretion of the banking personnel in > determining whether the person is of sound mind (within the meaning of the > Contract Act) at the relevant time and ideally the formulation should lay > down clear guidelines on how this determination should be made. We are > exploring some international precedents to see how this issue is handled in > other countries. It would be great if we can explore various options for > the formulation and see what may work in practice in the Indian scenario. > **** > > ** ** > > Another somewhat related debate is whether to amend the Contract Act to > say that a person shall be entitled to contact even if he is incapable of > understanding the contract and unable to form a rational judgement as to > the effect of the contract upon his interest. On this question, I believe > that it will be extremely difficult to get this amendment through and in my > opinion this question should be parked for the moment since we do not have > the necessary resources or manpower for this. Also, as you know, amendment > of a law requires it going through Parliament where you have to convince > 100s of MPs whereas getting the RBI to come out with regulations requires > you to convince only a handful of people. **** > > ** ** > > Thanks,**** > > ** ** > > Rahul**** > > ** ** > > > > > **** > > On 12 July 2012 22:10, harish <[email protected]> wrote:**** > > Dear Rahul,**** > > > **** > > **** > > I am merely trying to understand this better, I have no intention to be > negative in any way.**** > > **** > > When trying to have the application of your point b, it seems it is the > state of mind at that point of time, has the bearing on thelegality to > contract or otherwise. however, if this is challenged then on what can one > fall back on? How to prove it in a future date?**** > > **** > > Accordingly, the state of mind can also be taken at the time of dispute. > The situation would have altered then.**** > > **** > > Hence, this can result in uncertainty and dilute the effictiveness of the > contract**** > > **** > > **** > > Then, where do we stand? Even if the contract is otherwise legal. How > would the market take it?**** > > Harish Kotian.**** > > **** > > ----- Original Message ----- **** > > *From:* rahul cherian <[email protected]> **** > > *To:* Dlu South <[email protected]> **** > > *Cc:* Vaishnavi Jayakumar <[email protected]> ; > harish<[email protected]>; Rajesh > Asudani <[email protected]> ; [email protected] ; Bhargavi > Davar <[email protected]> ; Ratnaboli Ray <[email protected]> ; Soumitra > Pathare <[email protected]> ; Poonam Nataraj <[email protected]> ; Amita > Dhanda <[email protected]> ; viakalathur sunder <[email protected]>; MH > Policy Committee Secretariat <[email protected]> ; Sruti > disABILITY CENTRE <[email protected]> ; Javed Abidi <[email protected]>; > [email protected] ; [email protected] ; MHA > digest<[email protected]>; nami > india <[email protected]> ; Val Resh <[email protected]> ; > Lavanya > Seshasayee <[email protected]> ; Punitha > Suresh<[email protected]>; Vandana > Gopikumar <[email protected]> ; > [email protected] ; Lakshmi > Ravikanth<[email protected]>; > BALM <[email protected]> ; Nirmal Thomas <[email protected]> ; > David > Nash <[email protected]> ; Vivek Varkey<[email protected]>; > Vijayakumar > E <[email protected]> ; [email protected] ; shetty > chaitali <[email protected]> ; > chidambaranathan<[email protected]>; S > P Simmachandran <[email protected]> ; Rajiv Rajan<[email protected]>; > [email protected] ; Nazir <[email protected]> ; Deepak > Thanumalaya meenakshi nathan <[email protected]> ; Vijayakumar > Advocate <[email protected]> ; Porkodi <[email protected]>; > Ashok > Kumar <[email protected]> ; sudha <[email protected]> ; Amba > Salelkar <[email protected]> ; [email protected] ; The > Spastics Society of Tamilnadu > SPASTN<[email protected]>; Jayshree > Raveendran <[email protected]> ; Janaki > Pillai<[email protected]> > **** > > *Sent:* Thursday, July 12, 2012 4:26 PM**** > > *Subject:* Re: A brief report on the discussion held yesterday on the > banking rights of Persons with Intellectual disabilities and persons with > mental illnesses**** > > ** ** > > Dear Smitha,**** > > **** > > Thank you for this. A couple of clarifications will be helpful. Under > contract law, there must be a meeting of minds between the parties to the > contract on the terms of the contract for it to be valid. Under Section 11 > of the Contract Act "*Every person is competent to contract who is of the > age of majority according to the law to which he is subject, and who is > sound mind and is not disqualified from contracting by any law to which he > is subject*.” From this it appears that by default everybody who is > above 18 can contract. Section 12 of the Contract Act defines what is > “sound mind” for the purposes of contracting. As per Section 12 “*A > person is said to be of sound mind for the propose of making a contract, > if, at the time when he makes it, he is capable of understanding it and of > forming a rational judgement as to its effect upon his interest. A person > who is usually of unsound mind, but occasionally of sound mind, may make a > contract when he is of sound mind. A person who is usually of sound mind, > but occasionally of unsound mind, may not make a contract when he is of > unsound mind.***** > > **** > > *Illustrations (as given in the Contract Act)***** > > *(a) A patient in a lunatic asylum, who is, at intervals, of sound > mind, may contract during those intervals.***** > > **** > > *(b) A sane man, who is delirious from fever, or who is so drunk that > he cannot understand the terms of a contract, or form a rational judgment > as to its effect on his interests, cannot contract whilst such delirium or > drunkenness lasts*."**** > > **** > > From the above it is clear that the question of whether a person is of > sound mind or not is a question of fact. These sections have somehow gotten > twisted into the position it is in today. We are yet to commence research > in this area as to how this has happened. **** > > ** ** > > Our preliminary study of the RBI regulations indicate that by default > anybody with any of the disabilities mentioned in the NT Act would require > a guardian to undertake banking. This seems to be contrary to the Contract > Act as well as the CRPD, the Constitution etc. **** > > ** ** > > ** ** > > Thanks,**** > > ** ** > > Rahul**** > > ** ** > > ** ** > > ** ** > > ** ** > > On 12 July 2012 15:40, Dlu South <[email protected]> wrote:**** > > Dear Friends,**** > > ** ** > > Greetings from Vidya Sagar!**** > > ** ** > > Pl find below a brief report on the discussion held yesterday (11th July > 2012) on the banking rights of Persons with intellectual disabilities and > Persons living with mental illnesses.**** > > ** ** > > Kindly share your inputs on the same.**** > > ** ** > > Do let us know if we could have a Stake holders meet on the same by 28th > Saturday or 29th Sunday of this month. Pl get back on your preferred > day/date by this week end.**** > > ** ** > > Vaishnavi, could you share the Know Your Customer policy of Banks with the > group?**** > > ** ** > > Thanks & Regards**** > > ** ** > > Smitha.S.S**** > > ** ** > > *REPORT*:**** > > ** ** > > Vaishnavi Jayakumar, Rahul Cheriyan, Amba Salelkar, Dipti Bhatia, > Dhanasekar.A, Shanthi.R and Smitha.S.S were part of the discussion.**** > > ** ** > > Smitha briefed about the issues faced by a group of young adults with > Cerebral palsy and Mental retardation in opening a bank account on their > own for availing loans for a self employment venture and the denial of > banking rights for Persons living with Mental Illnesses.**** > > ** ** > > Amba described the provisions from the Master Circular of RBI Guidelines, > specific to banking facilities for the elderly, sick, incapacitated persons > and persons with Visual Impairment, Access to physical disabilities, > banking for persons with intellectual disabilities through guardianship > from Local Level Committees as referred by the National Trust Act and for > persons with mental health issues through guardianship processed under the > District Magistrate.**** > > ** ** > > Rahul elaborated the process of contract between an individual and a bank; > that it is a consensus between the two parties and there would not be a > consensus in case of a person with an unsound mind; Legal capacity is > assumed to be, for all citizens at and above the age of 18, unless it is > proved otherwise; RBI Guidelines reflect default Legal Capacity for persons > with Visual Impairment and physical disabilities; whereas it requires > guardianship for persons with National Trust Disabilities and Persons with > Mental Illness.**** > > ** ** > > Further discussions were held on the provisions of the National Trust Act, > which gives room for the execution of legal capacity, without guardianship, > for persons with 4 National Trust disabilities. The eligibility of a person > living with mental illness, who has an understanding about the contract, to > sign a contract was made clear from the provisions of the contract act, > which only requires an understanding of the contract at the time of signing > the contract.These provisions had been perverted in the RBI Guidelines, > denying legal capacity for persons with intellectual disabilities and > mental illnesses. **** > > ** ** > > It was therefore decided to study the Know your Customer Policy of the > Banks and that certain regulations are formulated for this purpose.**** > > ** ** > > The group emerged with the following ideas to obtain banking facilities > for persons with intellectual disabilities / mental illness at ease:**** > > 1. 1. Banks to have a small questionnaire that is a simple test of > understanding of the client with respect to the contract being made. **** > > 2. 2. If dissatisfied, the client could be attended by an in-house > panel equipped with professionals on mental health and intellectual > disabilities.**** > > 3. 3. Branch manager could refer the client for an assessment to > Local Level Committees or Mental health Networks, the payment for services > being taken care by the banks. **** > > 4. 4. Any client with Mental Illness / Intellectual disabilities, > who have a proof of other transactions/contracts currently on use, need not > undergo the 2nd and 3rd processes.**** > > The group felt the need to organize a Stake holders meet to evolve new > ideas, formulations to enable easy access of banking facilities for persons > with intellectual disabilities and mental illnesses. The criterion of the > meet shall be as follows:**** > > · Disabled people to get easy access to banking**** > > · No discretion to be allowed on the part of the bank/bank > authorities**** > > · To introduce new recommendations to RBI guidelines**** > > The discussion came to a close with an agreement to hold the stake holders > meet at the earliest.**** > > **** > > **** > > **** > > ** ** > > ** ** > > > > **** > > ** ** > > -- > Rahul Cherian **** > > Inclusive Planet Centre for Disability Law and Policy**** > > +91 98403 57991**** > > ++++++++++++++++++++++++++++++++++++++++++++++++++++++**** > > For more information about our work visit www.inclusiveplanet.org.in**** > > ** ** > > > > > -- > Rahul Cherian**** > > Inclusive Planet Centre for Disability Law and Policy**** > > +91 98403 57991**** > > ++++++++++++++++++++++++++++++++++++++++++++++++++++++**** > > For more information about our work visit www.inclusiveplanet.org.in**** > > ** ** > > ------------------------------ > Notice: This email and any files transmitted with it are confidential and > intended solely for the use of the individual or entity to whom they are > addressed. If you are not the intended recipient, any dissemination, use, > review, distribution, printing or copying of the information contained in > this e-mail message and/or attachments to it are strictly prohibited. If > you have received this email by error, please notify us by return e-mail or > telephone and immediately and permanently delete the message and any > attachments. The recipient should check this email and any attachments for > the presence of viruses. The Reserve Bank of India accepts no liability for > any damage caused by any virus transmitted by this email. > -- You received this message because you are subscribed to the Google Groups "Mental Health Advocacy (News 'N Views) India" group. 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