The truth? Which truth?

Imagine yourself in the role of a judge. The victim’s lawyer forgot to present a key document within the specified period, to prove that his client had the right he was claiming for. Because of this, he lost the case, and therefore his client lost his right.

You couldn’t do anything about it, even though you knew that the document, which actually exists, was necessary to reach the truth because your judgment is limited to the evidence offered by the parties.

So, the lack of evidence caused the truth from the sentence to be different from the “real truth”. In other words, the “truth” that was proven and the true of what really happened or what really is, didn’t match.

Unfair? Well, it depends on the eye of the beholder and in the next paragraphs, it will be explained why.

Let’s start from the premise that a judicial process has the purpose of solving a conflict by searching for truth. Although this can be difficult or complex, the idea is to reach a fair or better said “just” sentence, but, what is “just” in our context?

According to Ulpiano, Justice is the constant and endless will of giving each one what they deserve”. To do this we need to know the truth, hence the phrase of Joseph Jobert “Justice is truth in action.” The judge, to perform his function of administering justice must try to reach the truth. However, this truth is relative, because he bases his decision on the evidence offered by the parties.There are few exceptions in which the judge take part, and it depends on each legal system. [1]

So, at this point, we must make a distinction between material truth and procedural truth. The material truth comes to be what is true; conformity of what is said with what exists; it is what really happened. And the procedural truth is provided by evidence in a trial.[2]

Given this distinction, the judge ideally should try to obtain the material truth, the real one, which is that brings us to justice. This can’t be possible on several occasions due to the limitations within its functions.

Is procedural truth more important than the real truth for jurists? We believe that many would point out that it is not, but in our daily life, we are surprised by judicial decisions that tell us that this premise is true.[3]

In criminal procedure, the judge usually has extensive investigative provisions, because “justice” is only conceived if the historic determination of the event is full reached. And precisely this is the main reason to continue giving the judge broad powers of determination; on incorporation of proof, interrogation of witnesses, etc.[4] Even so, there are cases in which negligence of the lawyer or district attorney, prevents from reaching the truth.

To make a simple example, let’s suppose the following situation:

You witnessed a brutal murder committed by an under-age neighbor. You were threatened by your neighbor, and due to the involved danger, you moved from your house, arguing that anywhere was going to be safer. Nevertheless, you had to state in front of the court, because your declaration as a witness was considered one of the key evidences, so with your heart trying to run away and cover in cold sweat, feeling the cold-eyes of the murderer at your back, you accomplished with your duty.

With all the evidence it was possible to prove that the murder happened, but when analyzing the subject’s responsibility for the event, this couldn’t be done because the prosecutor forgot to perform an essential procedure in processes involving under-ages: the socio-environmental study. This mistake led to a terrifying result, the murderer was absolved.

The widow was drowning in tears, all the efforts to clarify the facts were in vain, because although “in the eyes of the material truth people comment that this person is a murderer; in the eyes of the procedural truth, he is innocent, and he can afford the luxury of walking through the streets“.[5]Can we consider it a “just” sentence? Can you consider this end as a “just” one?

There are, on the other hand, those who assert that if the judge is allowed to have more intervention, including remedying negligence of the parties in searching the truth, taking in count the case mentioned before, it would be rewarding the “bad” lawyer and punishing the “good” one.[6]

However, I think that for the effectiveness of the Judiciary in its search for the truth for the solution of conflicts, the magistrate must do everything he can. If this is not enough, the legal system should be rethought.

[1]For example: In labor law exists the principle of primacy of reality. And the judge can even give more than what was requested (ultra petita) or even what was not asked (citrapetita) if that corresponds.

[2] http://elderechoylaconstitucion.blogspot.com/2013/03/verdad-real-y-verdad.html

[3] http://yarelynicol.blogspot.com/2012/08/la-verdad-verdadera.html

[4]Zamora, Miguel. “La búsqueda de la verdad en el proceso penal”. ACTA ACADÉMICA, 54, pp. 147-186: 2014.

[5]http://www.eltiempo.com/archivo/documento-2013/DR-2004

[6]Falke,Ignacio Agustín. http://www.saij.gob.ar/ignacio-agustn-falke-verdad-formal-verdad-material-proceso-civil-apuntes-para-reflexionar-sobre-cmo-puede-influir-esta-discusin-ejercicio-diario-abogaca-dacf120023-2012-03-23/123456789-0abc-defg3200-21fcanirtcod


ABOUT THE AUTHOR

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ANTONELLA MENDEZ

Antonella Méndez is an educator, environmentalist and agent of change. She holds a Bachelor Degree in International Trade and she is graduating this year (2017) with a Professional Law Degree at the National University of Asunción. She is Assistant Professor of Sociology of Law and she is member of the research committee at university.  She is host of a live TV program about analysis and debate of general interest topics.

Easier said than done: The problem of non-compliance of the law

“There is no more serious pathology in law than a law that can’t achieve its goal”

A. Andaluz

Have you ever heard that “the laws are dead letters”? Most probably yes and more than once… and probably many examples are moving back-and-forth in your mind, but in order to illustrate what I mean with it let me share a little anecdote:

During a lecture in the law school, the Professor asked the students to raise their hands if they went to classes by motorcycle. More than three-quarters of the class did it, then the Professor said: “Keep your hands up if you use a helmet” Almost no hands were visible.

Wearing a helmet when riding a motorcycle is a transit rule, and there are pecuniary fines to punish non-compliance of this specific law. Many questions arise of this example and the most important is a childish one “Why?” short, plane, and many times complex. The analysis will start by answering the following: Why are laws created for?

Well, laws have to do with human behavior. Laws delimit the free will of people within society. Every law that is created has a certain purpose. Traffic laws for example, were created to avoid accidents, to set the order in a city or country, among other things.

The laws are also created to consolidate a social change. One example is when after the fall of the dictatorship of Stroessner in Paraguay, a new constitution was promulgated. It consolidated the change of dictatorship to democracy.

Likewise, laws are created in pursuit of social change. They serve as an instrument of social change and they can be successful or not. A clear example is the Dry Law in the USA, in which, due to strong social and religious mobilization, it was possible to pass a law that tried to abolish the habit of drinking alcoholic beverages. The prohibition banned the production and sale of alcohol, but failed to eliminate the desire of the inhabitants to drink it. The demand for alcoholic beverages was there, whether prohibited or not.

Governments and legislators can decide to abolish, limit, prohibit or regulate broad areas of human behavior, economic activity or public morality and decency even in liberal democracies with strong protections for individual rights. They can decide what behaviors, products or practices are illegal, and they can do that with all the power that the sanctioning apparatus of the State has. They can even do it with the best intentions, and all that, can be absolutely useless, if no one has incentives to obey the law.[1]

Now you may ask: “Why are not the laws obeyed?”.A single answer obviously doesn’t exist. It can vary individually or according to the different social groups.

An annual survey of the World Justice Project says that law enforcement varies widely across the world and appears to be related to per capita income. Western Europe was the region with the best position in the list.[2]

For example, the problem in Mexico of the lack of compliance of the laws lies in how badly they were made. They are that ambiguousthat promote acts of corruption.[3] In Colombia, the sanction of the new Traffic Code typified nearly 100 behaviors that can be fined, many of them not even known by citizens.[4]

Road safety laws are very poorly enforced in the Dominican Republic, a country in which there are not even reliable records of deaths due to traffic accidents and in which, moreover, it has regressed in that area.[5] So, per capita income, corruption, lack of knowledge, lack of social awareness, among other issues, make citizens disobey the laws.

“What can be done about it?”Well, when it comes to answering this question, we can talk about changing laws, hardening sanctions, pursuing offenders more energetically, increasing vigilance, informing citizens about their rights and obligations, fighting corruption, and so on. These Issues have been applied on several occasions but usually they are not sufficient. Because in the end it depends on the social conscience of each one.

The Dry Law and many other laws are reminders about the limits of state power and laws to change the behavior of its citizens. It depends on each one of us. It depends on you, on me, on everyone. Yes, we can do a lot of things as carry out scientific research to contribute to an effective solution, spread legal awareness as this blog seeks, but the most important action is to be the change we want to see in the world.[6]

[1]Roger Senserrich. “When are obeyed tha laws?”.Avaiable in: http://www.jotdown.es/2015/05/cuando-se-cumplen-las-leyes/

[2] Available in:  http://www.voanoticias.com/a/paises-cumplen-leyes-123738644/100380.html

[3] ALFREDO MENDEZ, Laws are not enforced because they are poorly done: specialist. Link: http://www.jornada.unam.mx/2006/06/21/index.php?section=politica&article=023n2pol

[4] Available in: http://www.eltiempo.com/archivo/documento/MAM-965873

[5] MARIEN ARISTY CAPITÁN, Traffic laws are little obeyed in the Dominican Republic. Link: http://hoy.com.do/leyestransito-se-cumplen-poco-en-la-republica-dominicana/

[6]Mahatma Gandhi quote.


ABOUT THE AUTHOR

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ANTONELLA MENDEZ

Antonella Méndez is an educator, environmentalist and agent of change. She holds a Bachelor Degree in International Trade and she is graduating this year (2017) with a Professional Law Degree at the National University of Asunción. She is Assistant Professor of Sociology of Law and she is member of the research committee at university.  She is host of a live TV program about analysis and debate of general interest topics.

Third Party Lawsuits

What is a Third-Party Lawsuit?

A third-party lawsuit, most simply put, is a lawsuit filed often against a person or group of persons not directly involved with your place of employment, but taking place while you are technically on the job.  In most cases where a third-party lawsuit is justified, the employee who files it is usually involved in a car accident or an off-site accident that involves some sort of negligence on part of property owners or managers.  Some typical examples of a third-party suit include suffering a fall in icy conditions on property where an employee is sent to work or a car accident that a truck driver may suffer while on the highway.

The Benefits of a Third-Party Lawsuit

When discussing options for employees to receive compensation for lost wages, most of them turn to worker’s compensation programs.  And rightfully so, as many of the cases that cause employees to be out of work for extended periods of time are generally the result of accidental injury at their work site.  However, there are times when an employee might be urged to file a third-party lawsuit in pursuit of further compensation.

Why File Third-Party?

On a general scale, employees suffer injury in the workplace due to accidental conditions: faulty equipment or circumstantial experience such as a fallen ladder or a wet floor.  The resultant injuries are generally settled with a worker’s compensation policy through the employer.  This type of compensation will afford you your medical bills that come as a direct result of your injuries suffered from the incident as well as restore some of your wages lost from time spent out of work.

While many might consider that worker’s compensation covers a favorable portion, seeking out a third-party lawsuit could conceivably award you significantly more.  Third-party lawsuits, on top of fully compensating for medical bills as well fully covering lost wages resulting from time away from work, will also award recompense for what are classified as “non-economic” damages.  These can extend into pain and suffering brought on by potentially life-changing injuries as well as punitive damages: damages that are awarded by a suit simply as an act of punishing a defendant for his or her actions.

In circumstances where an employee receives worker’s compensation and subsequently files and wins a third-party lawsuit, he or she will often be expected to use some of the awarded compensation for refunding the amount of worker’s compensation he or she had received up to that point.

Gross Negligence and Third-Party Lawsuits

Sometimes, in extreme cases – though normally difficult to prove – an employee may actually bring a third-party lawsuit against his or her own employer on account of gross negligence.  This sort of lawsuit involves injury due as a direct result of an employer’s action or inaction toward certain circumstances.  One such example could involve an employer’s instruction to an employee to work around toxic or otherwise harmful substances without providing the necessary safety equipment.  In such cases, the worker’s compensation is issued in the same manner and likewise reimbursed should the employee win the lawsuit brought against the employer.

There are even circumstances where an employee can be confronted by another employee or by his or her employer in a violent manner and could suffer physical injuries because of the altercation.  Very similar to gross negligence in terms of principle, an employee can bring about a third-party lawsuit against his or her co-worker or employer while simultaneously receiving worker’s compensation as if suffering a normal, work-related injury.  Even beyond worker’s compensation and a third-party lawsuit, an employee may also have the opportunity to bring up criminal charges against the co-worker or employer.  However, be aware that if a co-worker or employer can prove a case of self-defense that resulted in injuries to you, it is very unlikely you would even be awarded worker’s compensation, let alone win the lawsuit against them.

Bottom line, while worker’s compensation will do just that – compensate you (often partially) for work time missed due a related injury – the pursuit of a third-party lawsuit will more often than not reward you for damages beyond medical bills and lost wages.  Where it applies, a third-party suit will simply grant a greater reward to you for your pain and suffering, which would be especially helpful in situations that involve an extended leave of absence from work or the inability to work at all.  If you find yourself in a similar situation, be sure to consider and review your options of a third-party lawsuit with your attorney.

Sources


ABOUT THE AUTHOR

yosi-yahoudai

YOSI YAHOUDAI

Yosi Yahoudai is a founder and the managing partner of J&Y Law Firm. Yosi is an inspired, aggressive and successful advocate for his clients, especially those who have suffered from construction accidents. He is personally committed to making a difference in his clients’ lives. Nothing makes Yosi happier than getting his clients’ lives back on track.

Crime and Punishment

In the book of Genesis, Chapter 3, it is said that Adam and Eve were told by God not to eat the forbidden fruit. However, they were tempted by the serpent and did eat it. When God came and asked what happened, they said the devil tempted them, thus trying to put blame on the devil. This did not stop God from punishing them. The punishment in this book represents one of the earliest recorded punishments.

Punishment has since then become a part of human society, and it is one of the reasons the Law as we know it exists.

The Law in Uganda, for example, has a variety of punishments, the least severe of which are simple warnings and fines e.g. for first-time offenders in certain cases, and the most severe being the death sentence in crimes such as Murder.

There are a number of reasons for punishments including:

1. Deterrence: It is hoped that when a person knows what punishment he/she might suffer in case a crime is committed, such a person might think twice and be deterred from carrying out the crime.

2. Incapacitation: This basically involves doing something which prevents the criminal from doing the same crime by removing the said person from society. Examples include death sentence, imprisonment.

3. Rehabilitation: This usually involves steps taken to reform the criminal so that he/she learns not to do the said crime in future e.g. counseling.

4. Retribution: With punishment, it is hoped that when a victim sees the criminal suffer, then the victim will be less inclined to carry out personal revenge. It is partly for this reason that some countries allow people to even come around when a person is being executed.

5. Restitution: This aims to put the victim back at the same financial position he/she was before the crime occurred.

CRUCIFY HIM, CRUCIFY HIM AND WHAT JESUS’ TRIAL TEACHES US ABOUT MOB JUSTICE:

The Bible, in the book of Luke 23:14-25, speaks of how the trial of Jesus ended. In this verse, Pilate, finding no wrong with Jesus, was willing to have him released.

However, the mob kept demanding for his crucifixion through chants of Crucify him, crucify him. Bowing to their pressure, Pilate obliged and Jesus was crucified. This incident marks one of the earliest recorded incidents of mob justice.

Mob justice refers to the act of a group of people taking the law into their own hands to condemn and punish an alleged criminal and is very prevalent in Uganda today. In many cases, suspects are lynched then stoned, beaten to death, or burnt in car tires.

According to the Police crime report, mob justice is still one of the highest causes of unlawful deaths. In 2013, death by Mob Justice was recorded as the second highest cause of unlawful deaths in Uganda, after death by gun shootings.

Sadder still, not everyone killed in mob justice is guilty. If we recall, there was an incident where a young man at Makerere University was killed by a mob of students at one of the halls of residence, having been suspected of being a thief. It later turned out he was a former student, who had come to visit someone in the hall.

The constitution says that everyone is innocent until proven guilty, this means, people should be given a right to a fair trial before being condemned.

As we acttoday, let’s also learn that a given country can overcome this scourge of mob justice, and let the rule of law prevail worldwide.


ABOUT THE AUTHOR

JosephSemuju

JOSEPH SEMUJU

Joseph Semuju leads the programming team at Crossroads Digital Multimedia Limited. He is a native Ugandan and has worked for the Crossroads Digital Multimedia Limited as a 3D Computer Animator for the last two years. He received a Bachelor of Science in Computer Science with a second class – upper division from Makerere University. Joseph is someone who is constantly on a mission to keep things running smooth, fast, and in a more automated fashion. No tech question scares him; if he does not know the answer, he takes time to find it. He is detail oriented, thrive on efficiency, and ready to impact a positive change in Africa and the rest of the world through research, writing, and active citizenship.

The Trolley Problem

This article has been written by Raina Mahapatra. Raina is currently pursuing her undergraduate course from Symbiosis Law School, Pune.

While reading an article last night, I came across a very specific concept that seemed particularly interesting. Let me guide you along my ‘train of thought’ that originated hence.

It’s a lovely day out, and you decide to go for a walk along the trolley tracks that crisscross your town. As you walk, you hear a trolley behind you, and you step away from the tracks. But as the trolley gets closer, you hear the sounds of panic – the five people on board are shouting for help. The trolley’s brakes have gone out, and it’s gathering speed.

You find that you just happen to be standing next to a side track that veers into a sand pit, potentially providing safety for the trolley’s five passengers. All you have to do is pull a hand lever to switch the tracks, and you’ll save the five people. Sounds easy, right? But there’s a problem. Along this offshoot of track leading to the sandpit stands a man who is totally unaware of the trolley’s problem and the action you’re considering. There’s no time to warn him. So by pulling the lever and guiding the trolley to safety, you’ll save the five passengers. But you’ll kill the man. What do you do?

Most people say they would pull the switch and kill 1 rather than 5. A conventional and widely-accepted answer.
But if the terms of the situation are slightly changed, people tend to give quite a different answer. Suppose that there is no switch, but that you are instead standing on a bridge over the railway track next to a very fat man, and you are sure that if you pushed him onto the track his bulk (but not yours) would be sufficient to stop the train before it hit the group of people. What do you think now? Should you kill the fat man?
Most people who said ‘yes’ to diverting the train say ‘no’ to pushing the fat man. But if you do, many moral philosophers would say you have made a mistake. Not because you are wrong about whether or not to kill people to save others, but because you are being inconsistent about your killing decisions.

But there’s a third version of the trolley problem where instead of pushing the fat man, by turning a switch he will fall through a trapdoor, stop the train and save the five people. When you ask people that, most people still say you shouldn’t kill the fat man. More people are willing to turn the switch than push the fat man, but not dramatically more.

Both of these grave dilemmas constitute the trolley problem, a moral paradox first posed by Phillipa Foot in her 1967 paper, “Abortion and the Doctrine of Double Effect,” and later expanded by Judith Jarvis Thomson. Far from solving the dilemma, the trolley problem launched a wave of further investigation into the philosophical quandary it raises. And it’s still being debated today, very popular with philosophers with a certain whimsical bent.

The trolley problem is a question of human morality, and an example of a philosophical view called consequentialism. This view says that morality is defined by the consequences of an action, and that the consequences are all that matter. But exactly which consequences are allowable?

Take the two examples that make up the trolley problem. On the surface, the consequences of both actions are the same: one person dies, five survive. More specifically, in both examples five people live as the result of one person’s death. At first, both may seem to be justified, but most people, when asked which of the two actions is permissible – pulling the lever or pushing the man onto the tracks -say that the former is permissible, the latter is forbidden. It reveals a distinction between killing a person and letting a person die.

Why is one wrong and another possibly allowable when both result in death? It’s a question of human morality. If a person dies in both scenarios, and both deaths directly result from an action you take, what’s the distinction between the two? Aside from that highly improbable moment when you actually find yourself near a big man and a runaway trolley, the trolley problem seems far-fetched. But philosophical questions like this have real-world implications for how people behave in society, governments, science, law and even war.

The trolley problem is based on an old philosophical standard called the Doctrine of Double Effect. This doctrine says that if doing something morally good has a morally bad side-effect it’s ethically acceptable to do it provided the bad side-effect wasn’t intended. This is true even if you foresaw that the bad effect would probably happen.

The point of the trolley problem is to figure out what principle distinguishes those two variations – and, more importantly, what that tells us about real life cases. Can we apply that distinction to war, to medical ethics, to abortion? Originally the trolley problem was devised to explain the rights and wrongs of abortion. Today, it is often used in just war theory, the distinction between targeting a military installation knowing that civilians will be killed as bystanders, and directly intending the death of civilians.

Applied ethics is the application of moral theory to the real world.

Imagine applying our trolley logic to the case of the death penalty. Imagine further that a new study showed that, without question, the death penalty really does cut down the number of murders committed in any given year. Surely, under such (admittedly hypothetical) circumstances, the lever diverting the trolley would be rapidly replaced by the lever operating the executioner’s trapdoor. In fact, the replacement is made easier when we consider that the ‘sacrificed’ individual is likely to be a cold-blooded murderer. The wrinkle here is the word ‘likely’, because, from a purely utilitarian perspective, the occasional execution of an innocent makes no difference to the morality of the death penalty – the net benefit justifies the sacrifice.

Thus, on sole application of the findings of the Trolley problem on the much debated issue of death penalty’s validity, there arise two different sets of arguments.

Similar to the answer which involves saying yes to the train’s diversion but no to the deliberate pushing, the first argument against death penalty distinguishes between ‘killing a person’ and ‘letting a person die’. Hence, the preference for life imprisonment over death penalty. The second school of argument is based on utilitarianism or the principle of ‘greatest good for the greatest number’ as proposed by Jeremy Bentham and thus the methodology doesn’t really create that much of a hindrance since the outcome remains the same.

While the debate over validity and constitutionality of the death penalty remains ever-present, maybe a fresh perspective will help sort out the dilemma. Thus, the trolley problem. A new methodology of argument, perhaps.



The December book bucket

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The Algorithm of Benami Transaction

This article has been written by Eashwari Nair. Eashwari is currently a student in Symbiosis Law School, Hyderabad.

I. WHY CALL UPON THE EXAMINATION OF THIS CONCEPT?

Ever since the apparent surgical strikes that took place in the industry of the economy  of India ,in the form of demonetisation, the not very clean wealthy people of the society are trying to figure out means to keep their black money with disclosing it , despite repeated attempts made by the central government to do so.  One of the most affected areas of the economy is the real estate category, where it was seen that there existed a parallel economy itself.  This bombshell made up of demonetisation exploded where nobody thought it would.

The rich just seem so very greedy and it can be seen via the fact that they refuse to disclose the money they own, they just refuse to deposit it. Instead they fall within the clutches of Benami transactions without them even knowing it.

This topic technically came into play on  the 1st of November when the 2016  amendment to the original  Prohibition of Benami Property Transactions Act, 1988 was created.  Not just unclean builders but those trying to get rid of the unaccounted money they hold fall into the tempting jaws of Benami Transactions.

II. WHAT ARE BENAMI TRANSANCTIONS ?

In order to understand what Benami Transactions are , let’s break it down into 2 parts , first let’s understand what the term Benami indicates followed by the term of Transaction.

  • BENAMI:-

The word Benami is seen to be rooted to the Persian language signifying “no name”  or “without a name”. Benami is almost always spoken with respect to real estate and the property involved. Thereby the person in whose name the property is purchased is just a mask of the real beneficiary.

  •  TRANSACTION:-

The transaction which is spoken off is in terms of transfer of property. This transfer of property can take place via various methods. It can be in form of a sale deed, gift etc which are further elucidated in property law. The form of transfer that comes into play with respect to Benami transaction is that of a sale deed.

  • THE FINAL EQUATION INDICATES:-

And hence clubbing the individual terms together gives us the equation signifying a property is held or transferred to a person, but the consideration[1] for this property is paid by somebody else. For example:- X,Y and Z are three parties ,  X purchases property from Y where the consideration is paid by Z.[2]

III. OTHER TERMINOLOGIES REGARDING THE BENAMI TRANSACTION.

  • BENAMI PROPERTY.

The subject matter i.e. the property involved in a Benami transaction is termed as Benami property.

  • BENAMIDAR:-

Is the fictitious person whose name the Benami property is transferred.

IV. VARIOUS TRANSACTIONS THAT QUALIFY AS A BENAMI TRANSACTION:-

There are various methods of carrying out a transaction that is considered to be a Benami transaction by nature. The following types of transactions are considered to be Benami by nature .

  • Those transactions that involve the interests of a third party, i.e the property is transferred or held by one particular individual but the consideration for this property is paid by another person .
  • Next, Any sort of transaction or arrangement made out or carried out with respect to a property in the name of a fictitious name.
  • Furthermore the scope of a Benami transaction extends to those transactions where the owner of the property is either not aware of his/her ownership or denies the knowledge of ownership.
  • Also Benami transactions include those transactions that take place where the person providing the consideration for the Benami property is either not traceable or is fictitious in nature.

V. THE EXCEPTIONS TO A BENAMI TRASACTION( IN BREIF)

Taking into account the recent amendment of the Benami Transaction, there are certain transactions that do not fall under the ambit of a Benami transaction. Those transactions that do not qualify as Benami Transactions are:-

  • A karta, or a member of a Hindu undivided family holds the property for his benefit or for the benefit of other members of the family and the consideration for such property has been provided out of the known sources[3] of the Hindu undivided family.
  • Also Benami Transactions do not include those transactions where a person standing in fiduciary [4]capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company etc.
  • Furthermore any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of income.
  • In addition to the above, the scope of a Benami transaction does not catch those transactions that take place in the name of the individual’s brother or sister , provided the brother and or sister involved appear to be joint owners in the document, and the consideration for the subject matter i.e the property that is considered has been provided or paid out of the known sources of the individual.

VI. CONCLUSION:-

It is seen that the original bill contained few sections , but the recent amendment bought about 72 new changes . The most interesting part of this bill i personally find is the timing of the implementation of this bill. Just when our hon’ble Prime Minister drops the bomb of demonetization, furthermore this bill aids the very object of demonetization by being it’s ally with respect to curbing the menace of black money via keeping an on the methods of property transactions.

[1] Consideration = money.

[2] A highly basic example .

[3] Known sources does not implicitly imply known sources of income.

[4] Fiduciary capacity implies – >nvolving trust, especially with regard to the relationship between a trustee and a beneficiary.



The December book bucket

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