SVKM’s NMIMS Kirit P.

Mehta School of Law’s 7th Intra Moot Court Competition, 24-25th September, 2022

BENCH MEMORIAL

SR. ARGUMENTS FOR THE ARGUMENTS FOR THE

NO. APPELLANT’S SIDE RESPONDENT’S SIDE

ISSUE 1: Whether Schrute Farms is liable to pay damages in relation to the ‘Food Claims’ under the Law of Torts?

1. It is most humbly submitted before this Hon’ble Court that It is most humbly submitted before this Hon’ble Court that Schrute
Schrute Farms is liable to pay damages in relation to the ‘Food Farms is not liable to pay damages in relation to the ‘Food
Claims’ as under the Law of Torts Claims’ as under the Law of Torts

1.1 Schrute Farms is vicariously liable for acts of 1.1. Schrute Farms cannot be held vicariously liable for acts of
independent/fixed-term contractor Jim Halpert independent/fixed-term contractor Jim Halpert

Schrute farms must be held liable for the negligent acts Schrute farms cannot be held liable for the negligent acts committed
committed by their independent/fixed - term contractor, Jim by their independent/fixed - term contractor, Jim Halpert.
Halpert.
1.1.1. Schrute farms cannot be held responsible for Jim's acts, since
1.1.1 Schrute farms must be held responsible for Jim's acts, he was an independent or fixed term contractor and not an
despite the fact that he was an independent or fixed employee:
term contractor:
Schrute Farms is not vicariously liable for the breach of duty or torts
committed by Jim Halpert, who is a fixed-term or independent

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 SVKM’s NMIMS Kirit P. Mehta School of Law’s 7th Intra Moot Court Competition, 24-25th September, 2022

BENCH MEMORIAL

As per the orthodox view of vicarious liability under the law contractor. In the case of Barclays Bank PLC vs Various Claimants
of tort, employers are not responsible for the activities of [2020] UKSC 13, the Supreme Court while interpreting the
independent contractors. But, in the case of (Various difference between an employee and independent contractor stated
Claimants vs Barclays Bank PLC [2017] EWHC 1929 (QB)), that an employee is one who is paid a wage or salary to work under
the Court held that the modern theory of vicarious liability some control of his employer in his employer’s business for his
clearly states that a relationship other than one of employment employer’s business. In the instant case, it was clear that a contract
is capable of giving rise to vicarious liability where harm is of services was agreed upon between Schrute Farms and Jim Halpert.
wrongfully done by an individual who carries on activities as However, the commission being paid was conditional on the number
an integral part of the business activities carried on by a of meals prepared, not a fixed salary. Since there was no fixed
defendant. Further, the tortfeasor need not be an old- salary, Mr. Jim Halpert cannot be said to be an employee and hence,
fashioned employee. (Para 24, 19 of the Judgment). In the the fundamental relationship of employer and employee fails to get
instant case, it can be clearly concluded that the services established in the instant case. (Para 3 of Moot Proposition)
provided by Jim Halpert were an integral part of the business
1.1.2 Act done by Jim Halpert were never authorised by Schrute
activities of Schrute Farms (Schrute Farms being a Bed and
Farms
Breakfast as per Para 1 of Moot Proposition).

1.1.2. Test of Degree & Control and Contract of employment rule In the case of Sitaram Motilal vs Santanu Prasad Jaisanker Bhatt,
has become obsolete AIR 1966 SC 1697 it was clearly stated that “The act should either

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BENCH MEMORIAL

It is accepted that the degree of control is no longer be a wrongful act that had been authorised by the master or a
regarded as an especially significant factor in the analysis wrongful and unauthorised mode of doing an act that had been
of vicarious liability (Catholics Child Welfare Society vs authorised by the master.”
Various Claimants [2012] UKSC 56). Vicarious liability
can be extended to independent contractors if the acts are In this case, Jim Halpert deliberately and consciously ignored the
deliberate in nature (Para 18 of the Judgment). In this instruction of ‘Do not mix Tuna’ while preparing the chicken beet
case, Jim Halpert deliberately and consciously ignored salad which was consumed by Drake resulting in his death. The death
the instruction of ‘Do not mix Tuna’ while preparing the of Drake is directly connected to the unauthorised work undertaken
chicken beet salad which was consumed by Drake by Jim Halpert by not following the instructions. (Para 4 of Moot
resulting in his death. (Para 4 of Moot Proposition) Proposition)
It has however long been recognised that a relationship can 1.2.Schrute Farms cannot be held vicariously liable for acts of its
give rise to vicarious liability even in the absence of a employee Michaeal Scott despite he is an employee
contract of employment, hence it is immaterial whether the
In the case of State of Maharashtra vs Kanchanmala Vijay Singh,
contract between Schrute Farms and Jim Halpert has been
AIR 1995 SC 2499, it was clearly stated by the Hon’ble Supreme
signed or not, to hold Schrute Farms liable for the food
Court that employer cannot be held vicariously liable for the acts
claims in this instant case. (Para 25 of the Judgment,
of employee following outside the course of employment. When
Para 3 of the Moot Proposition)
Mr. Michael Gary Scott struck Meredith with the frying pan, he was

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BENCH MEMORIAL

Additionally, the general rule of vicarious liability does acting outside the course of his employment and the act was
not apply in cases when the employer is negligent in never authorised by Schrute Farms. After being startled, he struck
appointing the independent contractor and when the risk of Meredith as reaction to a sudden disturbance and not in furtherance
harm is foreseeable unless precautions are taken (Tarry vs of his actual course of employment. (Para 6 & 7, Moot
Ashton (1876) 1 QBD 314). Schrute farms hired Jim as a Proposition)
chef despite the fact that he had no prior training as a chef
Furthermore, he had not been authorised to defend the
and had previously only worked as a salesman and
establishment against potential intruders, which was done owing to
wilderness guide. Schrute farms, who were overburdened
absence of mind. (Para 4 & 7, Moot Proposition)
with work, impulsively hired Jim without analysing his
skills for the position. (Para 3 of the Moot Proposition) 1.3. There was no negligence on part of Schrute Farms:
1.2 Schrute Farms is vicariously liable for acts of its
1.3.1 Duty of Care was owed individually by Mr. Halpert and Mr.
employee Michaeal Scott
Scott:
1.2.1 Employer is liable for employees’s unskillfulness and
In order to adjudge Duty of Care in a given situation, it is crucially
negligence
important to take into consideration the wilful conduct of
Schrute farms is held liable for the negligent acts committed by negligence as well as carelessness in performance of duty.
their full-time employee, Michael Scott (Para 5 of Moot (Rajkot Municipal Corporation vs Manjulben Jayantilal Nakum
Proposition). In the instant case, on hearing a strange noise in (1997) 9 SCC 552). In the instant case, Duty of Care was owed

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 SVKM’s NMIMS Kirit P. Mehta School of Law’s 7th Intra Moot Court Competition, 24-25th September, 2022

BENCH MEMORIAL

the kitchen, Michael abruptly woke up and without gaining individually to Drake and Meredith by Mr. Jim Halpert and Mr.
full control of his senses, he grabbed the frying pan and bashed Michael Gary Scott as due to their wilful conduct of negligence as
the head of the person, believing them to be an intruder. As it well as carelessness in performance of duty, death and injuries
turned out, the alleged intruder was Meredith Palmer, a guest at occurred as natural consequences. (Para 4 & 7 of Moot
Schrute Farms who entered the kitchen looking for peanuts and Proposition) Further, they were “directly and closely” affected by
salt. The alleged intruder collapsed on the floor and had to be their negligent, unauthorised acts and should have been taken into
rushed to the hospital. (Para 7 of Moot Proposition). It has due consideration before the commission of such acts. (Donoghue
long been the established law that a master is liable to third v. Stevenson, UKHL 100)
persons for any injury or damage done through the negligence
1.3.2 Death of Drake and Injuries to Meredith were a direct
or unskillfulness of a servant acting in his master's employ.
consequence of breach of duty by Mr. Halpert and Mr. Scott
(Bartonshill Coal Co. v. McGuire, (1858) 3 Macq) This
individually:
principle was also reaffirmed and upheld through Century
Insurance Co. Ltd. v. Northern Ireland Road Transport Board In the landmark tort case of Overseas Tankship (UK) vs The Miller
(1942 AC 509). Here, injury Meredith was caused due to Steamship Co. (Wagon Mound No. 2 case) [1966] UKPC 10 it was
circumstances that could have been easily avoidable with the held that the test of breach of duty under negligence is directly
exercise of due care and caution. (Para 4 & 8 of Moot connected to the extent of possible harm which is so great that a
Proposition), Mr. Michael Gary Scott had unwittingly injured reasonable person would guard against it. In the instant case, due
to deliberate and consciously ignoring of instructions by Mr. Halpert

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 SVKM’s NMIMS Kirit P. Mehta School of Law’s 7th Intra Moot Court Competition, 24-25th September, 2022

BENCH MEMORIAL

a third person while performing the work within their course or bashing the guest by Mr. Scott, the death and injuries were a result
of employment as under Schrute Farms. of direct consequence of breach of duty which was individually
owed by Mr. Halpert and Mr. Scott towards the guest. Hence, it gets
1.2.2 Employer’s duty of care is personal:
firmly established that the essentials of negligence, including
Any employer’s duty of care is personal and does not become causation, stands fulfilled individually for Mr. Halpert and Mr.
discharged through the appointment of another “competent” Scott. Additionally, Negligence is the omission to do something
person to carry out necessary tasks. (Wilsons and Clyde Coal v which a reasonable man, guided upon those considerations, which
English [1938] A.C. 57) Here, Schrute Farms cannot shirk their ordinarily regulate the conduct of human affairs, would do, or doing
vicarious liability as although Mr. Scott was a fantastic cook, something which a prudent and reasonable man would not do.”
his idea of doing any work half – heartedly and being laid back (Lochgelly Iron and Coal Company v McMullan [1933] UKHL
and less productive at work questions his ‘competency’ J0710-4) Any reasonable man would not go against the direct order
unanimously (Para 6 of Moot Proposition) of the head chef, especially when most customers specifically request
meal modifications owing to allergies and can be put at risk if
1.3 Schrute Farms holds a non-delegable duty towards
ignored. (Para 4 of Moot Proposition) A reasonable man would also
Drake & Meredith Palmer
not deem it appropriate for employees to nap in unauthorised places
Schrute Farms owes a duty of care towards Drake and Meredith during an active workday, especially when it negatively impacts the
Palmer which is non – delegable in nature. workflow and can potentially drive down hotel clientele. Negligence
on part of Mr. Jim Halpert and, Mr. Michael Gary Scott can be proved

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 SVKM’s NMIMS Kirit P. Mehta School of Law’s 7th Intra Moot Court Competition, 24-25th September, 2022

BENCH MEMORIAL

1.3.1 Schrute Farms had a non-delegable duty towards Drake as the peculiar circumstances created by them directly resulted in
who was a guest at their bed and breakfast: the injuries and losses faced by Drake’s family and Meredith Palmer.
(Syed Akbar v. State of Karnataka, AIR 1979 SC 1948)
Non-delegable duty refers to when an employer owes such a
duty of care which cannot be delegated to a third party; in 1.3.3 All essentials of Negligence stands fulfilled for Mr. Halpert

such cases he can be held liable if the independent contractor and Mr. Scott individually:

acts negligently and breaches such duty. Non delegable duty It can also be stated conclusively that Mr. Jim Halpert and Mr.
arises when common law imposes a duty which has three critical Michael Gary Scott are solely responsible for the negligence
characteristics: first, the duty arises because of an antecedent caused as all three components laid down in Jacob Mathew v. State
relationship between the defendant and the claimant; second the of Punjab (AIR 2005 SC 3180), i.e., “duty, breach of duty, and
duty is a positive or affirmative duty to protect a particular class resulting damage” can be found established in these scenarios.
of persons against a particular class of risks (and not simply a
duty to refrain from acting in a way that foreseeably causes 1.4 Schrute Farms gets a complete indemnity against any

injury); and third the duty is by virtue of that relationship liability.

personal to the defendant as clearly stated in the case of

Furthermore, where there is no proper fault that can be attributed
Woodland v Essex County Council (2013) UKSC 66. In this
to the employer, a complete indemnity may be awarded to it against
case, Drake being severely allergic to tuna was vulnerable to
the person or employee actually at fault. (Nelhams v Sandells
risk of anaphylactic shock and death, but he trusted Schrute
Maintenance Ltd, The Times, June 15, 1995) Here, since all

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 SVKM’s NMIMS Kirit P. Mehta School of Law’s 7th Intra Moot Court Competition, 24-25th September, 2022

BENCH MEMORIAL

farms with his wellbeing when he availed their services. In the necessary care and precaution had been taken by Schrute Farms
case of Myton vs Woods (1980) 79 LGR 28, the court held that by way of appropriate culinary instructions through an employee
the defendant cannot be held liable for the actions of an and no contribution in the negligent behaviour of Mr. Michael Gary
independent contractor unless “he delegates to the contractor Scott, Schrute Farms cannot be held vicariously liable.
the very duty which he himself has to fulfil.” Schrute farms
cannot evade the responsibility of care owed to Drake by
assigning it to an independent contractor, who was Jim Halpert
in the present case. Even though Jim's negligence caused
Drake's injury, Schrute farms should be held accountable since
they owed him a duty, which was non – delegable in nature.

1.3.2. Schrute Farms is liable for the carelessness of its

employees:

In the instant case, Schrute farms is liable for the careless act of
Mr. Scott of bashing Meredith Palmer with a frying pan. (Para
7 of Moot Proposition) Even if the employee intended to
benefit himself by committing the wrongful act in question, the
employer is still held vicariously liable for the acts done if the

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BENCH MEMORIAL

acts are under the doer’s usual course of employment. In the

instant case, Mr. Scott bashed Meredith Palmer with a frying
pan after hearing a strange noise in the kitchen, as a cook,
which fully falls in his course of employment. (Para 7 of
Moot Proposition) (Clive Bellman vs Northampton
Recruitment Limited [2018] EWCA Civ 2214) Duty of care of
the employer cannot be fulfilled if there is a “fault on the part
of anyone to whom the employer entrusts its performance.”
(WM Morrison Supermarkets PLC vs Various Claimants
[2018] EWCACiv 2339)

ISSUE 2: Whether Schrute Farms is liable to pay the remaining Commission in relation to the
‘Mifflin Claims’ under the Law of Contracts?

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 SVKM’s NMIMS Kirit P. Mehta School of Law’s 7th Intra Moot Court Competition, 24-25th September, 2022

BENCH MEMORIAL

ISSUE It is most humbly submitted before this Hon’ble Court that

It is most humbly submitted before this Hon’ble Court that Schrute
2: Schrute Farms is liable to pay the remaining commission in
Farms is not liable to pay the remaining commission in relation to
relation to the ‘Mifflin Claims’ as under the Law of Contracts.
the ‘Mifflin Claims’ as under the Law of Contracts. The new
The new contract entered into by the parties is voidable and the
contract entered into by the parties waived off the remaining dues of
remaining dues of the old contract is to be paid. By the action
the old contract. The same shall be proved using 3-fold arguments.
of the parties, it can be deduced that they were still in a
contract, and therefore contended that Dunder Mifflin be paid 2.1 Pam Beesly’s consent in the New Contract was Free and fails
the commission it is entitled to. The same shall be proved using to qualify as a case of Undue Influence
3-fold arguments.
It is humbly submitted that Dunder Mifflin was awarded the
2.1. Pam Beesly’s consent in the New Contract was not free contract for the exclusive sale of Schrute Farm Packages. (Para 9
and qualifies as a case of Economic Duress of Moot Proposition). Further, the contents of New Contract was
shared with Pam Beesly including the necessary revisions from the
2.1.1. Application of Doctrine of Lawful Economic Duress
side of Schrute Farms. (Para 12 of Moot Proposition)
Economic duress refers to a subset of duress wherein there is a
2.1.1 Free Consent as fully informed and aware of the Contents:
threat of serious financial consequences so as to give the
threatened party no practical choice but to enter into the contract. In the Zamet v. Hyman. [1961] 1 WLR 1442, 1445, the court said
In the instant case, given Dunder Mifflin’s dependency on Schrute that, once the presumption is raised the onus is cast upon those who

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BENCH MEMORIAL

Farms, its precarious financial position and Pam’s conflicted support the [transaction] of establishing affirmatively that the
feelings, Pam felt that her hands were tied. Had Pam lost the complainant executed it not merely understanding its effect but as
Schrute Farms’ contract, Dunder Mifflin may have to be wound a result of full, free and informed thought about it. In the instant
up and that Pam, personally, may have faced imminent case, on 27 July 2021, Pam agreed to the revised terms and signed
bankruptcy. Hence, it can be clearly concluded that there is a the New Contract. (Para 13 of Moot Proposition)
threat of serious financial consequences posed in the instant
The concept of undue influence is inapplicable in this instant case.
case. (Para 13 of Moot Proposition) (Occidental Worldwide
Four requirements of a plea of actual undue influence are: (1) a
Investment Corp v. Skibs [1976] 1 Lloyds Report 293; North
capacity in the defendant to influence the complainant; (2) that the
Ocean Shipping Company v. Hyundai Construction [1979] QB
influence was exercised; (3) that its exercise was undue; and (4)
705; Pao On v. Lau You [1980] AC 614; The Universe Sentinel
that its exercise brought about the impugned transaction. These are
[1983] 1 AC 366; Alec Lobb (Garages) v. Total Oil Great Britain
the four elements that are presumed. This means that disproof of
[1983] WLR 87)
any of them must rebut the presumption. (BCCI v. Aboody [1990]
The courts in UK, however, have held that economic duress may 1 QB 923, 967). (Para 14).
also be applicable for two parties similarly placed financially
The fact that an appellant suffers from some vulnerability that gives
without any dominant authority of one over the other. This
everyone in the world the capacity to influence him, does not render
was also recognized by the Supreme Court of India in Central
it any less of a relevant influence. The key is whether it gives the
defendant the chance to affect the complainant’s decision

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 SVKM’s NMIMS Kirit P. Mehta School of Law’s 7th Intra Moot Court Competition, 24-25th September, 2022

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Inland Water Transport v. Brojonath Ganguly. Relevant portion whether to contract, without the need for engaging in
is extracted hereunder: unacceptable conduct, and thus makes the complainant vulnerable
to the defendant, not whether this is particular to the complainant’s
It would appear from certain recent English cases that the
relationship with the defendant. This is appropriate, because, even
courts in that country have also begun to recognize the
though the complainant is weak, it would be improper for contract
possibility of an unconscionable bargain which could be
law to deprive the defendant of a contract to which the
brought about by economic duress even between parties who
complainant consented when the defendant did not engage in any
may not in economic terms be situate differently.
unacceptable conduct in procuring it. (Para 13 & 14 of the

The requisite of the doctrine are fully met: Proposition).

2.1.2 Ongoing Contract: 2.2 Contract of Waiver is valid.

The proposition clearly states that there was an ongoing contract As per Section 63 of the Indian Contract Act, 1872, the promisee

between the two parties as the Old Contract was enforced for a may dispense with or remit performance of promise.

period of one year from 17th August, 2020 and the voidable Additionally, neither consideration nor an agreement would be

New contract was put to Dunder Mifflin in July 2021, before necessary to constitute waiver. (Jagad Bandhu Chatterjee v.

its official expiry. (Para 10 & 11 of Moot Proposition) Nilima Rani (1969) 3 SCC 445) (Para 10 and 12 of Moot
Proposition)

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2.1.3 Threatened to cancel the contract: 2.2.1 Intentional Relinquishment & Full Knowledge

In Pakistan International Airlines Corp v Times Travel (UK) The essential element of waiver is that there must be a voluntary
Ltd (UK) Ltd [2021] UKSC 40, the Court held that a contract and intentional relinquishment of a right. The voluntary choice
whereby a threatened party waives a civil claim against the is the essence of waiver. There should exist an opportunity for
threatening party may be voidable for lawful act duress where choice between the relinquishment and an enforcement of the right
the threatening party deliberately manoeuvres the threatened in question. (In P. Dasa Muni Reddy v. P. Appa Rao (1974) 2 SCC
party into a position of vulnerability (Dunder Mifflin’s fear 725) (In M.P. Sugar Sugar Mills Co. Pvt. Ltd v. State of U.P. AIR
of imminent bankruptcy if contract with Schrute Farms is 1979 SC 621) The intentional relinquishment as done by Pam
not signed (Para 13 of Moot Proposition)) or increased Beesly is purely based on her fears of bankruptcy of Dunder
vulnerability to its demand to enter this contract via Mifflin and she is fully aware about the revisions shared by
‘illegitimate’ conduct. Schrute Farms as per the New Contract. Hence, the essential
element of waiver stands justified. (Paragraph 12& 13 of Moot
2.1.4 Illegitimate Pressure & no other alternatives:
Proposition)
The rule of causation applies to assail a contract for duress. The
2.3 No Application of doctrine of Lawful Economic Duress:
party alleging duress needs to establish that duress was the
cause of entering into the supplementary contract and show In the case of Pakistan International Airlines Corp v Times Travel
that had there been no illegitimate pressure from the opposite (UK) Ltd [2021] UKSC 40, both justices noted the importance of

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party, the agreement would not have been executed at all or at clarity and certainty in commercial law, meaning the concept of
least not on the terms in which it was agreed. (Huyton SA. Peter lawful act duress should not be stated too widely. Rejecting calls
Cremer [1999] 1 Lloyds Rep 620) In the instant case it can be for a wide principle of good faith, and observing that there is no
clearly concluded that Pam felt that her hands were tied. Had doctrine of inequality of bargaining power under English law,
Pam lost the Schrute Farms’ contract, Dunder Mifflin may meaning that parties can generally pursue their own self-interest
have to be wound up and that Pam, personally, may have in commercial bargaining, they agreed that it will only be a rare
faced imminent bankruptcy, which clearly establishes duress case where lawful act duress will be found to exist in the context of
and time effectively became a constraint as well as she was such bargaining. In the instant case, when Pam Beesly realised
given less time to ponder on it. (Para 13 of Moot Proposition) Dunder Mifflin’s financial dependency on Schrute Farm packages,
she wilfully agreed to sign the New Contract put forward by Schrute
2.2 Pam Beesly’s consent in the New Contract was not free
Farms. (Para 13 of Moot Proposition). It also needs to be
and qualifies as a case of Undue Influence:
considered that it is appropriate to focus on the nature and

The Supreme Court in National Insurance Company v. justification of the demand, rather than the legality of the threat

Boghara Polyfab, Civil Appeal No. 5733 of 2008 held that or pressure.

agreeing to a lower settlement or a full and final discharge, must

be seen to determine whether settlement or supplementary
agreement was freely consented to. In this instant case, it can
be clearly made out that the consent of Pam was never free as

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felt that her hands were tied. Had she lost the Schrute Farms’
contract, Dunder Mifflin may have to be wound up and that
Pam, personally, may have faced imminent bankruptcy. Her
signing of the contract is directly reflective of violation of
fundamental principle of Contract law – Free consent. The
High Court of Delhi in Puri Construction v. Larsen & Toubro:
This head of "economic coercion" would fall within the
meaning of Section 16 of the Indian Contract Act, 1872 which
defines "undue influence" as one where the relation subsisting
between the parties is such that one of them is in a position to
dominate the will of the other and uses that position to obtain
an unfair advantage over the other. Section 16(3) states that,
where a person in a position to dominate the will of the other
enters into a contract with him and the transaction appears on
the face of it or on the evidence of it to be unconscionable, the
burden of proving that there was no undue influence is on
the person who is able to dominate the will of the other. Sub –
sections (c) and (d) particularly deal with cases of economic

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duress or undue influence. It cannot be said that the Tribunal

arrived at a finding which is contrary to the substantive law of
the country or contrary to justice and morality.

2.3 The New Contract is not a valid contract of Waiver:

It is humbly submitted that the contract of waiver entered into

by the parties is not a valid one as it fails to fulfil the
requirements of the same.

2.3.1 Need for voluntary relinquishment:

In the instant case, there was no voluntary relinquishment,

contrarily, Pam was under economic duress and undue
influence while signing the alleged new Contract (Para 13 &
14 of Moot Proposition)

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2.3.2 Must be an intentional act with Knowledge (Lord

Chelmsford, L.C. in Earl of Darnley v. London, [2018] UKSC
50)

The Hon’ble Supreme Court in P. Dasa Muni Reddy vs P. Appa

Rao stated:

There should exist an opportunity for choice between the

relinquishment and an enforcement of the right in question. It
cannot be held that there has been a waiver of valuable rights
where the circumstances show that what was done was
involuntary. In the instant case, it was a common knowledge
(and is not denied) that Schrute Farms offered similar choices
as that given to Pam Beesly and Dunder Mifflin. Some accepted
these allegedly ridiculous terms and some negotiated out of the
Waiver & Release. (Para 14 of Moot Proposition). There can
be no waiver of a non-existent right.

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