The Will Theorist’s Mailbox: Misunderstanding the Moment of Contract Formation in the Indian Contract Act, 1872

Swaminathan, Shivprasad

doi:10.1093/slr/hmw029

Cited by 2 publications

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“…37 The primary differences between the Indian Contract Act and the Contracts' Law (Cap. 149) are technical: certain explanations were moved into the main text, illustrations have been removed and specific performance is provided for in Cyprus contract law (Hatzimihail, 2015;Swaminathan 2018). The most important difference has to do with the interpretation of statute.…”

Section: The Importance Of the English Common Law For The Development...mentioning

confidence: 99%

Control of Unfair Terms Under Cypriot Contract Law

Mouttotos

2022

Liverpool Law Rev

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The introduction of the EU Unfair Terms in Consumer Contracts Directive in the legal system of Cyprus was the first instrument specifically dealing with the problems that arise with standard form contracts and the issue of consent. However, the Directive only generated caselaw approximately twenty years after its adoption, whereas the principle-based approach of the test for unfairness (significant imbalance test and good faith requirement) was interpreted in the common law notion of absence of dishonesty. Hence, Cypriot courts interpreted good faith as “honesty in fact”. Under this interpretation, it seems that both procedural and substantive unfairness are not captured under the test. It is understood that whereas the statute codifying the contract law of Cyprus has incorporated the [civil law] will theory of contracts, no tools for the invalidation and scrutiny of terms that may be deemed unfair were provided. The statute placed considerable emphasis on procedural fairness, however, Cypriot courts seemed unwilling to adapt their approach and deal with the problems that standard form contracting poses, failing also to follow the developments in the UK. Thus, even after the adoption of EU consumer law directives, Cypriot courts show an unwillingness to scrutinize the parties’ initial allocation of risk, even though such allocation was done in a standardized manner by one party. Despite the mixed character of the legal system, consumer law directives and the introduction of content control can be seen as legal irritants.

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Section: The Importance Of the English Common Law For The Development...mentioning

confidence: 99%

Control of Unfair Terms Under Cypriot Contract Law

Mouttotos

2022

Liverpool Law Rev

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“…The Indian Contract Act, 1872 (ICA) is a progressive legislation that seeks to go beyond the constraints present within its source, the English common law. In several areas, be it consideration, communication of offers, or remission of performance, amongst many others, the rules embodied within the ICA are an improvement on the source material Swaminathan 2008 ; Swaminathan 2017 ; Swaminathan 2018 ). However, one area where this assertion does not hold is that of incapacity, specifically those agreements where one of the contracting parties is a minor.…”

Section: Introductionmentioning

confidence: 99%

Minors’ Contracts in the Digital Age

Gangwar

2022

Liverpool Law Rev

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Minority is well established as a form of legal incapacity across jurisdictions and laws. Some countries grant minors with limited capacity to contract while others consider all minors’ contracts to be void. These rules were laid down in the pre-digital age. Minors today are entering into more and varied transactions than the generations before them, be it shopping on e-retail websites, creating social media accounts, or the more traditional employment contracts. This paper examines how the three jurisdictions of England, India and South Africa deal with minor contracts in the digital age. While South Africa permits minors above the age of seven years to enter into contracts with parental assistance, the English and Indian position is that minor contracts are unenforceable against minors, unless they are ‘contracts for necessaries’ or contracts for the benefit of the minor. Judicial interpretation of these categories has been fluid and indeterminate, creating its own set of problems. This paper argues from the Indian standpoint that the current understanding is inadequate to address the issues that will arise from the mismatch between law (where minority is almost synonymous with incapacity) and reality (where minors are increasingly entering into contracts). The author suggests that the definition for minority for contractual liability should be graded after the model of criminal liability and demonstrates that there are some, albeit imperfect, gains to be had from the South African system.

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The Will Theorist’s Mailbox: Misunderstanding the Moment of Contract Formation in the Indian Contract Act, 1872

Cited by 2 publications

References 0 publications

Control of Unfair Terms Under Cypriot Contract Law

Control of Unfair Terms Under Cypriot Contract Law

Minors’ Contracts in the Digital Age

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