The Indian Contract Act — background and case law

Abstract

This article aims to illustrate the background and the case law of the Indian Contract Act, enacted in 1872. It also tries to provide a comparison between the law introduced in India and the model which is the English Common Law of Contract based on the English law of the time. Indeed, the provisions contained in the Indian Contract Act are more advanced and more organically conceived than the English Common Law of Contract. Pillars of the Common Law of Contract such as the doctrine of consideration, the doctrine of frustration and the doctrine of economic duress are found in the Indian act in an improved version. Indian courts applied them consistently in the majority of cases. Even today, in a few exceptional cases, the Indian courts appear to be influenced by English case law to such an extent that they do not comply with the innovative aspects of the Indian Contract Act. Recently the pandemic of Covid-19 causing hindrance to the performance of many contracts raised questions such as the existence of force majeure able to nullify the contract and in certain cases it triggered the applicability of the doctrine of frustration. Such situations are codified by the Indian Contract Act and case law is available. New needs have arisen in the field of marriage law such as prenuptial agreements, which may apparently be deemed valid if they pass the test of public order as stated in the Indian Contract Act.

Keywords:

Indian law, Common Law, Indian Contract Act, contract law, marriage law