The headline may not catch the attention of those in developed nations. However, it is integral to the Indian economy. Nearly 60-70% of India’s economy is dedicated agriculture. The agriculture sector is composed of:
This is the largest and poorest segment due to the disparity of power. These laws eliminate the commission agent (arthiya) which has been integral to the farming economy, as the arthiya employs individuals who load and offload trucks, weigh the products, and find price rates. Each town has multiple arthiyas and individuals who work with them. This goes on to have a huge impact on the logistics industry since local truckers will be losing their livelihood. There was a “go green revolution in the 60s” where India asked Punjab and Haryana to feed the nation by planting wheat, so that they would no longer need to rely on foreign imports. The method for farming ruined the land, through various chemicals being introduced to the very same agricultural crops that feed the nation. Punjab and Haryana land specifically has sacrificed so much to feed India, but now that India needs them - everyone is turning their backs. Punjab’s economy is heavily agriculturally based, given that it is endowed with five rivers and fertile land. That being said, are Punjab’s interests always upheld at the national level through the saddening increase in farmer suicide rates over the years and the lack of governmental support for shopping local or fair pricing. As someone who practices the Sikh faith, I have been seeing a lot of the teachings of Sikhism in the hard work and determination of the farmers. In Sikhism, the first Guru, Sri Guru Nanak Dev Ji laid the principles as “Kirt Karo (an honest and earnest living), Naam Japo (pray) and Vand Chhako (share the fruits of your labour with others).” The first and third principles have deep roots in farming, as farming was seen as a practice of being self-sufficient and serving the community. This has also helped to develop the practice of langar through feeding individuals free meals, which can be seen in Gurudwaras across the world. During the pandemic, langar seva overseas for those who could not make ends meet, was witnessed around the world - to any person of the human race. By: Karen Randhawa and Sukhdeep Kullar As the movement continues to get strong, I thought it was a good idea to share it with the readers of LB. My ancestors were farmers, hence why this issue becomes personal. I wanted to try my best to do this issue justice with regards to explaining the bills in detail to those who may not be aware of why the “Farmers Protest” matters, and that too on this side of the world. It’s important to mention that you do not have to have any family connection to farmers, to acknowledge and understand the threat this bill poses to the livelihood of farmers, the very same people who continue to feed the world.
This series hopes to describe to our readers the largest protest in the world’s largest democracy, the significance for farming, and why it is a violation of rights. Laws are passed for the betterment of society. However, it is beneficial to contact and keep those individuals who are impacted in mind, in order to pass effective legislation. Yet common farmers had no part in the process of drafting and approving the legislation. The unity amid a pandemic and the resilience displayed by the farmers who left the comfort of their home to protest, is commendable to say the least. What Legislation is Being Opposed? In September 2020, amid a pandemic, the government passed 3 laws deregulating the agriculture sector. Bill #1 - Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 Eliminate all government subsidies for the farmers Currently, the government guarantees farmers a minimum support price for at least a few grain crops which range from 10 to 15 USD for 100 kilos of grain products. Currently, farmers trade their crops within a Mandi system, that allows them to trade in a market with minimum support pricing (MSP). Think of the Mandi as the middle man/ farmer’s market. With the passing of this bill, this law will eventually diminish within a year or two because of the lack of regulation that forces farmers to deal with the demands of big corporations. Going forward, the farmers will have to do contract farming with corporations on an agreed upon price and the corporation will dictate the specifications of products produced. Any excess product will not be purchased, and thus will go to waste. To explain it in comparable terms, it is the equivalent of eliminating a minimum wage or a price floor. The farmers now do not have any price stability and are at a greater risk of being taken advantage of. Bill #2 - The Farming Produce Trade and Commerce (Promotion and Facilitation) Bill If the farmer gets into a dispute with a private company, they cannot go to the courts. Under contract law, will these corporations choose to perform in good faith? In this situation, what are the repercussions if the corporations decide against that? There is a clear power imbalance that tips the scale in the favour of corporations. There is no legal recourse for 50-60% of India's population in cases where a big corporation takes part in exploitation. In the event a dispute occurs, an arbitration will happen but who will have the bargaining power? You guessed right - the corporation not the farmer. Such a bill gives the corporations even more power so that they continue winning every single time, leaving nothing up to the farmers. Bill #3 - The Essential Commodities (Amendment) Bill Any person or entity can hoard or store an unlimited quantity of any essential commodity or product. A large corporation has the capacity to use their financial resources to purchase and hoard agricultural products.. Unfortunately, farmers do not have the capital to invest in storage. This becomes an issue because these very same corporations will have the ability to buy crops in bulk at a lower price. This will undercut the market for these crops on which farmers gain their profits thus leaving them with significantly less to take home. By: Karen Randhawa and Sukhdeep Kullar An Oldie but a Goodie When I reflect on my first year of law school, one particular case stands out. Not only because it was a landmark case that reshaped our understanding of contract law, but it also continues to be relevant in the world of advertising and marketing. The Carlill v Carbolic Smoke Ball Co decision was delivered by the Queen’s Bench in 1892. The facts are straightforward. In 1891, Carlill, the plaintiff, saw an advertisement in a local newspaper, published by the defendant, the Carbolic Smoke Ball Company. As you may know, during the late 1880s, the influenza epidemic had claimed the lives of many. The defendant’s claimed that their ‘smoke ball’ could cure the flu. They were so sure of their product that their advertisements promised a 100€ reward to any person that contacts the influenza or any cold, after using the Carbolic Smoke Ball according to the printed directions supplied with each ball. The advertisement went as far as stating that the company deposited 1000€ to a bank to demonstrate their sincerity in the matter. Upon seeing the advertisement, the plaintiff purchased one of the balls and used it as instructed (3 times a day for nearly two months). Unfortunately, she contracted the flu. She claimed her 100€ reward from the defendant but was completely ignored. She turned to the court, arguing that she was entitled to the reward. The legal issues boiled down to whether the defendant’s advertised reward was a ‘mere puff’, used to attract customers. Or whether there was a contract formed and eventually breached by the defendant when they refused to award the plaintiff the 100€. Essentially, Carbolic argued that the advertisement was only an attempt to promote and sell their products. They claimed that it would be outrageous of any customer to believe that the company truly meant to pay up. As a result, the court makes a distinction between two kinds of advertisements. First, vague advertisements, using ambiguous language about rewards, are to be considered mere puffs, which carry no enforceability. By contract, where an advertisement uses specific language, it is construed to be an offer. The latter applies here. Not only did the defendant’s ad stipulate that there is a 100€, they also went on to note that there was a deposit worth 1000€ made to the bank. As such, the ad was deemed to be a unilateral offer, which did not require performance but when the performance was completed by the plaintiff, the offer was accepted. A contract was then formed, and it is left to the defendant to perform. Carbolic shews, by the nature and language of the ad, that they do not expect to be notified of performance. Why is this important? While most marketing strategies can be reduced to a mere hoax or ‘puff’, advertising that uses precise and specific language can legally bind the offeror to live up to their promises. Essentially this decision has created a new binding relationship between companies and consumers, holding the companies responsible for the promises they choose to advertise to the world. Unlike typical bilateral contracts, acceptance of unilateral offers does not have to be communicated. In general, a contract is formed once there is intention to create a legal relationship, then an offer, a communicated acceptance and then performance of the contract in exchange for consideration. In a unilateral contract, however, the contract is accepted when the offeree performs the conditions of the contract. Notice of acceptance does not have to precede performance of the offer in unilateral contracts. The offeror gets notice of acceptance at the same time they get notice of performance of conditions. By Lucinda Chitapain Last week, the Ontario government announced that schools will not be reopening for the school year. Students enrolled in summer school are taking courses online. Universities have sent emails stating that it is likely that the fall semester will be online with smaller classes/labs to be held in person. In light of these updates, two major issues affecting university students have surfaced:
The Res Life University and college residences are not protected by rental rules under the Residential Tenancies Act. At this time, universities are developing a residence strategy for Fall 2020. Universities across the country have done a phenomenal job by posting on their respective pages the housing responses to COVID-19, which are regularly updated. These pages provide information on how to apply for a refund for those who evacuated their residence, and information about summer accommodations for people who are unable to return home. The FAQ pages state that students have two options: either they can receive a refund of their residence deposit by July 15, or have their deposit forwarded to the Winter term. Only single rooms will be open for residence, and common areas will be closed due to the need to practice social distancing. Keeping these changes in mind, is it fair to charge students the same amount of money for residence, given that many facilities will be inaccessible in the new school year? Off Campus Accommodation Ontario published rental changes during COVID-19. The government acknowledges that not everyone can afford to pay their rent, and thus did not create a blanket rule for all to follow. The application of the rules depends on the situation and circumstances. The province-wide strategy encourages landlords and tenants to reach fair arrangements that suit the needs of both parties during these difficult times. The website states “tenants who can pay their rent must do so, to the best of their abilities.” But what about students? Students who may not be moving back this fall but have already signed a lease? This creates room for issues. While some may have been able to sublease their place over the summer, it is difficult to say whether they will be able to do the same for the fall term. The rental scheme includes guidelines for landlords facing financial burdens. Landlords are given the option to discuss with their municipality about assistance with property taxes and municipal service fees. Likewise, banks are willing to cooperate with landlords to defer mortgage payments during this time. In British Columbia, a rental supplemental program was introduced that provides $500/month to low and moderate-income renters experiencing loss of income and hardship due to COVID-19. However, this amount would not suffice in Ontario where the average rent is $1273. In Toronto, there is the Toronto Rent Bank which provides no interest loans to low income renters who face evictions. However, this relief is for two months even though the pandemic is expected to impact the fall term which would mean upwards of six months. Contractual Implications Since April 30, 2018, leases are written in a standard template. This lease is written in simple language and is inclusive of the rental amount, due date, amenities covered in the rent, and the rules about the rental unit. Renter and landlord rights and responsibilities are explained. Since a lease is a contract, it is subject to the laws relating to contracts. Thus, is there a possibility that these leases can end because of COVID-19? Cessation Some leases have cessation clauses, where the tenant has duties and cannot simply walk away from the lease. Extinguishing the lease would create bad blood between the landlord and the long term tenants. Leaving the landlord out to dry and moving the stuff back? Not the most efficient way. Force Majeure A force majeure provision is either an act of God or a defined provision which such as a fire, flood, war or insurrection. There is no common law doctrine of force majeure. In Canada, a force majeure clause can only be relied upon if it exists strictly in the contract. Most leases don’t have a force majeure provision which would allow parties to terminate the lease or other obligations without a penalty. If such a clause exists, university students could most likely rely on this, since governments have imposed travel bans and quarantines. However, by the fall semester most of the economy is expected to open up and stay-at-home orders are likely going to be loosened, which may weaken tenant claims relying on the force majeure clauses. In order for a force majeure provision to be invoked, the destruction needs to be permanent in nature. Other factors besides Force Majeure could be:
If force majeure cannot be established, tenants may seek relief through the doctrine of frustration. Frustration In order to argue a contract has been frustrated, the tenant needs to argue that there was an unforeseen event which is:
There is a high bar to pass according to the test set out for frustration in Davis Contractors v Fareham. The party claiming frustration must show that the nature of the contract has drastically changed and that it would be unjust to hold the parties to the contract. COVID-19 has led to unprecedented circumstances. The government made orders under state of emergency for non-essential businesses, thus impacting wages to pay rent. There is yet to be case law that shows the impact of a pandemic on a frustration argument. In Canary Wharf v EMA, it was decided that Brexit did not frustrate the terms of the lease and rent needed to be paid. In Australia, it is difficult to request rent reduction or abatement, as frustration is not easily arguable in the context of a lease. In India, even if individuals are unable to use the premises during a period of closure, they will be bound to pay rent. Delhi High Court released a decision saying “temporary non-use won’t make rental lease void.” If the contract is found to be frustrated, the Frustrated Contracts Act applies:
Unconscionability Is it unconscionable to ask for rent when the property is not being enjoyed? If the landlords are deferring mortgage payments, but still charging rent, how is this fair? There is no mechanism in place to ensure that landlords who are asking for these deferrals are in fact providing relief to their tenants. This situation further highlights the power imbalances between landlord and tenants. COVID-19 is an unprecedented situation, which has impacted everyone on the planet. The level of uncertainty that university students face when it comes to their future is at an all-time high, arguably worse than the 2008 recession. It is a matter of health and safety. Not moving into private accommodation near the university is a way to promote social distancing. However, if students are required to pay their monthly rent, this adds to the pressure of meeting ends by being responsible for rent for unoccupied/ unused land. By: Karen Randhawa |
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