COURSE MANUAL

LAW OF CONTRACT I

Course Instructors

Shilpi Bhattacharya
Aditya Krishna Chintapanti
Shivangi Gangwar
Dolashree Mysoor
Shivprasad Swaminathan
Ishana Tripathi

B.A., LL.B. and B.B.A, LL.B. 2019

(Semester B –2020)

1
 Course Manual for Law of Contract - I

The following information contains the official record of the details of the course.

PartI

Course Title: Law of Contract I

Course Code:
Course Duration: One
Semester
No. of Credit Units: 4 credits
Level: B.A. LL.B/ B.B.A. LL.B
Medium of Instruction: English
Pre-requisites: Nil
Pre-cursors: Nil
Equivalent Courses: Nil
Exclusive Courses: Nil

The above information shall form part of the University database and may be uploaded
to Dspace into the KOHA Library system and catalogued and may be distributed
amongst students.

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 PART II

A. Course Description

For most of you this is your first introduction to the world of contracts. Accordingly, you will
study the elements of a standard contract, how it is formed, its terms, the manner of
performance, and the various legal challenges to the enforcement or performance of any
agreement. This subject-matter will hold you in good stead throughout your law career and
beyond, as contracts permeate our personal, professional and commercial lives. As and
when appropriate, the course will also attempt to weave in readings from a literary,
historical, philosophical and economic perspective to allow us to get a more holistic sense of
the theories behind contract law.

B. Course Aims

This course will:

 Provide students with the basic principles of the Indian Contract Act, 1872, such as
offer, acceptance, agreement, void contracts, voidable contracts, competency to
contract, breach of contract, frustration of contract, remedies and damages.
 Demonstrate the interpretation and application of said principles by Indian courts,
and the courts in other common law countries.
 Explore the policy underpinnings of the core doctrines of Indian contract law, and
how these policies have evolved, including through reference to contract law in
common-wealth countries such as the United Kingdom.
 Illustrate the relationship between contract law and actual commercial practice by
businessmen, consumers, and others in contemporary society

C. Intended Learning Outcomes

Intended Learning Teaching and Learning Assessment

Outcomes and Weightage Activities Tasks/Activities

By the end of the course, students should be able to:

(i) Demonstrate knowledge
and understanding of the
relevant aspects of contract
law; state relevant rules and
(i) Reading of relevant cases,
statutes, and other legal
40% materials:
Students’ ability to grasp
and critically evaluate
the topics/issues
discussed in the syllabus
3
sources of law and be able to
discuss their effect
(ii) Demonstrate an interest in
the operation of day- to-day
commercial transactions.
Students will be able to
distinguish between the
operation of various types of
commercial contracts such as
indemnity contracts,
guarantee, pledge, bailment,
etc.
Students are expected to read
the wide range of materials
included in the Course Manual
30% or in handouts.
(ii) Lectures:
Students will acquire basic
knowledge on how to read
cases, statutes, scholarly
writings and other legal
material, and formulate
arguments for or against a
legal proposition.
will be tested in the
following ways:
(i) End-semester
examination (50%).
(ii) Internal assessment
(50%). Each Course
Instructor will advise the
students separately as to
the methods by which
the students will be
internally assessed.

(iii) Apply the legal principles
to understand and appreciate
legal problems in the field of
commercial contracts
30% Students will learn how to
comprehend a legal issue and
to find and apply legal rules to
a given situation/case through
background readings and case-
law analysis.

(iii) Tutorials:
Each Course Instructor will
advise the students separately
as to the specific tutorials that
will be conducted in class.

D. Grading of Student
Achievement

Students will be assessed based on a common final examination, as well internal

assessment modes, determined by each instructor individually. The common final
examination will constitute 50% of your overall grade. The remaining 50% will be based
upon the internal assessment, as determined by your course instructor.

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Please note the grades and their values below:

Letter Percentage Grade Definitions

Grade Of marks
O 80% and above Outstanding Outstanding
work with strong
evidence of
knowledge of the
subject matter,
excellent
organizational
capacity, ability
to synthesize and
critically analyse
and originality in
thinking and
presentation.
A+ 75 to 79.75% Excellent Sound
knowledge of the
subject matter,
thorough
understanding of
issues; ability to
synthesize
critically and
analyse.
A 70 to 74.75% Good Good
understanding of
the subject
matter, ability to
identify issues
and provide
balanced
solutions to
problems and
good critical and
analytical skills.
A- 65 to 69.75% Adequate Adequate
knowledge of the
subject matter to
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 go to the next
level of study and
reasonable
critical and
analytical skills.
B+ 60 to 64.75% Marginal Limited
knowledge of the
subject matter,
irrelevant use of
materials and
poor critical and
analytical skills.
B 55 to 59.75% Poor Poor
comprehension
of the subject
matter; poor
critical and
analytical skills
and marginal use
of the relevant
materials.
B- 50 to 54.75% Pass “Pass” in a pass-
fail course. “P”
indicative of at
least the basic
understanding of
the subject
matter.
F Below 50% Fail Fails in the
subject

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E. A Word of Caution on Online Readings

Students are encouraged to access online resources for research and preparation for
next class. However, online sources can be classified into reliable, unreliable and
outright bogus, and students are cautioned from depending on unreliable and bogus
materials. Internet is an open domain in which all can create web pages and indulge in
propaganda, falsification or misrepresentation of events. The few sources that can help
you with basic information and which are fairly unbiased are: websites of
established newspapers, magazines and journals.

Student should always consult with the instructor about the veracity and authenticity of
a particular website and its suitability for researching topics covered in this syllabus.

F. P lagiarism

Any idea, sentence or paragraph you cull from a web source must be credited with the
original source. If you paraphrase or directly quote from a web source in the exam,
presentation or essays, the source must be explicitly mentioned. You should not feel free
to plagiarize content, be it from scholarly sources (i.e. books and journal articles) or from
the internet. This is an issue of academic integrity on which no compromise
will be made, especially as students have already been trained in the perils of lifting
sentences or paragraphs from others and claiming authorship of them.

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Part III

A. Readings:

Faculty members may assign readings from any of the following secondary sources:

1. AVTAR SINGH, CONTRACT AND SPECIFIC RELIEF (Eastern Book Company)

2. AKHILESHWAR PATHAK, CONTRACT LAW, 1ST ED. (OXFORD UNIVERSITY

PRESS, 2011)

3. EWAN MCKENDRICK, CONTRACT LAW: TEXT, CASES & MATERIALS ( 5TH EDN,
OXFORD UNIVERSITY PRESS, 2012)[ENGLISH CASEBOOK]

4. NILIMA BHADBHADE, POLLOCK & MULLA INDIAN CONTRACT AND SPECIFIC

RELIEF ACTS, (14TH ED. LEXIS NEXIS BUTTERWORTHS WADHWA, 2013)

5. ADRIAN BRIGGS AND ANDREW BURROWS, THE LAW OF CONTRACT IN

MYANMAR (OXFORD UNIVERSITY PRESS 2017) (COMMENTARY ON A COPY OF
THE INDIAN CONTRACT ACT IN FORCE IN MYANMAR)

https://www.law.ox.ac.uk/sites/files/oxlaw/briggsburrowsbook_-
_thelawofcontractinmyanmar.pdf

6. G. TREITEL/E.PEEL, THE LAW OF CONTRACT (SWEET & MAXWELL, 13TH EDN,

2011)

7. S. SMITH, ATYAH’S INTRODUCTION TO THE LAW OF CONTRACT (CLARENDON

PRESS, OXFORD 2005)

8. SCOTT BURNHAM, DRAFTING AND ANALYZING CONTRACTS (CAROLINA

ACADEMIC PRESS 4TH ED. 2016)

9. POLLOCK AND MULLA LAW OF CONTRACT (2ND ED. 1909) Note: this is the second
edition of 1909.

https://archive.org/details/indiancontractac00polliala/page/n4

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The students should familiarize with the following legislations during the progress of this
Course.

1. THE INDIAN CONTRACT ACT, 1872

2. SPECIFIC RELIEF ACT, 1963

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B. Class Format

The class will cover between one and two topics each week as per the lecture
program. The instructor will tell students at least a week before how far ahead to
read in the required readings for the next week, and if there are any changes in the
readings. Students are expected to attend all classes and to complete all the required
readings and case laws. If you are unable to attend a class you should contact the
course instructor in advance.

The class format will combine lecture and discussion along with on the spot Q&A
sessions. Students are expected to prepare for and participate in class discussion on a
regular basis.

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 PART IV

Syllabus and Required Readings:

The following information is subject to modifications as per the progress of the course.

Teaching Plan

Week Topic

1-2 Introduction & Offer

3 Acceptance

4-6 Consideration, Intention to Create

Legal Relations and Privity

7-8 Capacity & Consent

9 Illegality

10 Contingent Contract

11 Discharge

12-14 Remedies- Damages and Specific

Relief

15 Quasi Contracts

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 OFFER

An offer, or proposal, is an objective manifestation of an intent to be bound, and which

is made with a view to obtaining the acceptance of another. The person making the offer,
or proposal, is the offeror. The person to whom the offer is made, is the offeree.

Please keep the following questions in the back of your mind as you go through your
reading. This will help you glean the most pertinent information from your reading
materials:

(1) What is an offer?

(2) How is the offer communicated?
(3) What is the difference between a general offer and a specific offer?
(4) What is the difference between offer and an invitation to make offer (also known
as invitation to treat)?
(5) How does an offer lapse?

Compulsory Readings:

Statutory Provisions:

Contract Act, 1872: Sections 2-4, 8-10

Cases:

Invitation to Make Offer/Invitation to Treat

Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern) Ltd., [1952]
2 QB 795
McPherson v. Appana, AIR 1951 SC 184

Revocation of Offer

Dickinson v. Dodds [1876] 2ChD 463

Advertisements as Offers

Carlill v. Carbolic Smoke Ball Co., [1893] 1 QB 256

Leonard v. Pepsico, 88 F. Supp. 2d (1999)

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Lefkowitz v Great Minneapolis Surplus Store Inc (1957) 86 NW 2d 689

Articles:

A.W.B. Simpson, ‘Quackery and Contract Law: The Case of the Carbolic
Smoke Ball’ (1985) Journal of Legal Studies 345-389.
Patricia Williams, Alchemical Notes, 22 Harv. C.R.-C.L. L. Rev. 401 (1987) (Extracts)

ACCEPTANCE

After an offeror communicates her offer to the offeree, the offeree may accept the
offer, reject the offer, or propose a counteroffer. Once an offeree accepts the offer, a
contract is born.

Please keep the following questions in the back of your mind as you go through your
reading. This will help you glean the most pertinent information from your reading
materials:

(1) Who may accept an offer?

(2) How must the offeree accept an offer?
(3) What is a counteroffer, and when do courts deem acceptance to actually constitute a
counteroffer?
(4) How must an offeree communicate his acceptance?
(5) How may an acceptance be revoked?

Compulsory Readings:

Statutory Provisions:

Contract Act, 1872: Sections 2-7

Cases:

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Acceptance

Harvey v. Facey, [1893] 3 App. Cas. 459

How to accept

Butler Machine Tool Co. Ltd. v. Ex-Cell-O Corpn (England) Ltd., (1979) 1 WLR 401 CA

How to accept: Acceptance by Conduct

Pro CD v Zeidenberg, 86 F. 3d 1447 (7th Cir. 1996)

Acceptance in Ignorance of offer

R V Clarke (1927) 40 CLR 227 (Australia)

Communication of Acceptance:
Adams v Lindsell, (1818) 1 B & Ald. 681 [Communication of Acceptance]
Entores v. Miles Far East Corporation, [1955] 2 QB
Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas & Co., AIR 1966 SC
543

Articles:
S. Swaminathan, ‘The Will Theorist’s Mail Box: Misunderstanding the Moment of
Contract Creation in the Indian Contract Act’ (2018) 39 Statute Law Review 14-26.

Suggested Additional Reading

Hyde v Wrench, (1840) 3 Beav. 334 [Mirror Image Rule]

Felthouse v Bindley, (1862) 11 CBNS 869 [Mode of Acceptance]
Errington v Errington, [1952] 1 KB 290 [How to Accept: Acceptance by Performance]
Felthouse V Bindley (1862) 11 CB (NS) 869 [Silence not acceptance]
Badrilal v. Indore Municipality, AIR 1973 SC 508
Perala Krishnayyam Chettiar v. G. Paimanathan Chettiar, AIR 1917 Mad 63
Haridwar Singh v. Bagum Sambrui, AIR 1972 SC 1242
Brodgen v Metropolitan Railway [1877] 2 App Cas 666

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Frederick Lipman, ‘On Winning the Battle of the Forms: An Analysis of Section 2-207 of
the Uniform Commercial Code’, Vol. 24 The Business Lawyer (1969)

CONSIDERATION

One of the fundamentals of contract law is that a contract must represent a

bargained-for exchange of promises. This bargained-for exchange is broadly referred
to as consideration. The promisee (person receiving the promise) is the one who gives
consideration in return for the promise, however, both parties to a contract are
promisors and promisees. In other words, consideration is a two-way street.

Please keep the following questions in the back of your mind as you go through your
reading. This will help you glean the most pertinent information from your reading
materials:

(1) What is consideration?

(2) What is privity of contract? What is privity of consideration?
(3) Does consideration have to be adequate? If so, how is such adequacy measured?
(4) What is promissory estoppel?
(5) Is past consideration valid consideration?

Compulsory Readings:

Statutory Provisions:

Contract Act, 1872: Sections 2(d) and 25

Cases:

Definitional problem?

The standard definition of consideration in English Law uses the language of ‘benefit’
and ‘detriment’. The Indian Contract Act doesn’t use those words. How far from the
English position does this really take the Indian law?

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Courts and academics alike have held that the Indian Contract Act reproduces the
consideration requirement of English law. But is there any warrant for this assumption?
Could it be argued instead that although the Indian Contract Act uses the term
consideration, it means something completely different from the English law?

Reading:

S. Swaminathan, ‘Eclipsed by Orthodoxy: The Vanishing Point of Consideration and the

Forgotten Ingenuity of the Indian Contract Act’ (2017) 12 Asian Journal of
Comparative Law 141-165.

Cases:

Need not be adequate

Chappel & Co V Nestle [1960 AC] 87

Illusory consideration

Ramchandra Chintaman v. Kalu Raju, (1877) 2 Bom 362

Past consideration and its limits

Mill v. Wyman, 3 Pick. 207 (Mass. 1825)

Pre Existing Duty

Lalman Shukla v. Gauri Dutt, (1913) 11 ALJ 489 (is there any basis for the pre-existing
duty rule in Indian law?)

General

Williams V Roffey Brothers [1991] 1 QB 1

Stilk v Myrick (1809)2 Camp 317

Ramchandra Chintaman v. Kalu Raju (1878) ILR 2 Bom 362

Kedarnath Bhattacharji v. Gorie Mahomed. (1866) ILR 14 Calcutta 64

Consideration and Promissory Estoppel

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General Proposition
Central London Property Trust V High Trees House Ltd [1957] 1 KB 130
M.P. Sugar Mills v. State of U.P., AIR 1979 SC 621

Suggested Additional Readings:

Devji Shivji v. Karsandas Ramji, AIR 1954 Pat 280

Pao On V Lau Yiu Long [1980] AC 614
Webb v. McGowin, 27 Ala. App. 82 (1935)
Stilk v Myrick (1809)2 Camp 317
Crabb V Arun DC [1976] Ch. 179
Total Metal Manufacturing V Tungstein Electric [1955] 1 WLR 761

Intention to Create Legal Relations

The test of intention to create legal relations is a test the law uses to mark out agreements
which it thinks are serious enough to be enforced from those which are not so. Given this
role, its function overlaps partly with that of the doctrine of consideration. It would also be
useful to study how exactly the idea of ‘intention to create legal relations’ is related to
Consideration. While reading the materials pertaining to intention to create legal relations,
students should persistently keep in the forefront the question of whether this doctrine is
merely a reincarnation of consideration without the language of value/ benefit/ detriment
or whether it is a free-standing principle. The contract law of Europe does quite happily
without consideration and all agreements which are made with the intention of creating
legal relations are treated as binding contracts. The theme here has a relevant connection
with the rules relating to ‘offer’. So, it is useful to revisit some cases relating to offer here
while discussing intention to create legal relations.

Compulsory Readings:

Cases:

Balfour V Balfour [1919] 2 KB 571

Lucy v. Zehmer, 84 S.E.2d 516

Suggested Additional Readings:

Coward V Motor Insurers’ Bureau [1963] 1 QB 259

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Kleinwort Benson V Malaysia Mining Corporation [1989] 1 All ER 785 (involving the
legal status of comfort letters)

Is ‘intention to create legal relations’ a requirement under Indian Contract Law?

Banwari Lal V Sukhdarshan Dayal (1973) 1 SCC 294

CWT Vs Abdul Hussain (1988) 3 SCC 562

Privity of Contract and Consideration

The doctrine of privity of contract states that a contract is a private affair between two
parties consequent upon which third parties neither have rights nor duties. However, the
destiny of the privity rule is tied closely to the doctrine of consideration (See Dunlop
Pnuematic and Tweddle v Atkinson ) . Now, given that the definition of consideration
under the Indian law is much wider than English law—and there is no specific provision
incorporating a privity requirement—does it still make sense to stick to the English rules
of privity?

Compulsory Readings:

S. Swaminathan, ‘The Great Indian Privity Trick: Hundred Years of Misunderstanding

Nineteenth Century English Law’ 2016 (16) Oxford University Commonwealth Law
Journal 160-182

Cases:
Tweddle v Atkinson, [1861] 1 B & S 393 [Privity of Consideration]

Dunlop Pnuematic Tyre Company V Selfridge Co [1915] AC 79

Chinnaya v. Venkataramaya (1881) ILR 4 Madras 137

M.C.Chacko v. The State Bank of Travancore (1969) 2 SCC 343

“At the desire of the promisor”

Kedarnath v. Gorie Mohamed, 1886 ILR 14 Cal 64

Doraswami Iyer v. Arunachala Ayyar, AIR 1936 Mad 135

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Suggested Additional Reading

Raja of Venkatagiri v. Krishanayya, AIR 1948 PC 150

Currie v Misa, (1875) LR 10 Ex. 153 [Consideration]
Hughes v. Metropolitan Railway Co., (1877) 2 App. Cas. 439 [Promissory Estoppel]

CAPACITY

Generally speaking, the capacity to contract requires an analysis of whether a person is

eligible to enter into a contract. Related to this inquiry, is an analysis of the
consequences which follow if persons ineligible to enter into a contract do so and the
legal principles that must be considered.

Please keep the following questions in the back of your mind as you go through your
reading. This will help you glean the most pertinent information from your reading
materials:

(1) Who is competent to contract?

(2) What is a sound mind for the purposes of contracting?

Compulsory Readings:

Statutory Provisions:

Contract Act, 1872: Sections 10, 11, 12, 65, 68

Cases:

General Rule

Mohri Bibi v. Dhuromdas Ghose, 1903 30 IA 114

Raj Rani v. Prem Adib AIR 1949 Bom 215
Mathai v. Joseph Mary (2015) 5 SCC 622
Nash v. Inman, [1908] 2 KB 1

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Article:

S. Swaminathan, ‘Minors’ Contracts: A Major Problem with the Indian Contract Act, 1872’.
Forthcoming in Statute Law Review (with Ragini Surana)

https://academic.oup.com/slr/advance-article-abstract/doi/10.1093/slr/hmy034/5252089

Circumventing the General Rule

A.T. Raghava Chariar v. O.A Srinivasa (1916 ) 31MLJ 575

Fernandez v. Gonsalves AIR 1925 Bom 97

Suggested Additional Readings:

Gadigappa Bhimappa v. Balangowda, AIR 1931 Bom. 561 (FB) [Application of rule of
estoppel to minors contracts]
Ajudhia Prasad v. Chandan Lal, AIR 1937 All. 610

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 CONSENT

For a contract to come into existence, the contracting parties must consent to the
contract. But, there might be occasions in which the consent of a party to the
contract has been obtained in a questionable manner.
In this unit, we will discuss the ways in which the Contract Act seeks to intervene
when the fact of consent to a contract might have been influenced by (i) coercion, (ii)
undue influence, (iii) fraud, (iv) misrepresentation, and (v) mistake.

Please keep the following questions in the back of your mind as you go through your
reading. This will help you glean the most pertinent information from your reading
materials:

(1) What is consent? And under what circumstances is such content vitiated?
(2) How are coercion, undue influence, misrepresentation, fraud and mistake
defined, and what is their effect on a contract?
(3) What is the difference between coercion and undue influence?
(4) What is the difference between misrepresentation and fraud?
(5) What is the effect of a mistake of fact and a mistake of law?

Compulsory Readings:

Statutory Provisions:

Contract Act, 1872: Sections 13-23, 64, 65, 66

Cases:

Threat of self-harm and coercion

Chikham Amiraju v. Chikham Sesamma, 1917 41 Mad. 33

Threat of criminal prosecution and coercion

Askari Mirza v. Bibi Jai Kishori, 1912 16 IC 344

Kishen Lal Kalra v. NDMC, AIR 2001 Del 402

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 Economic Duress

Universe Tankships Inc of Monrovia v International Transport Workers’

Federation [1982] 2 All ER 67
Atlas Express Ltd. v Kafco [1989] 1 QB 833

Undue Influence

Subhash Chandra Mushib v. Ganda Prasad Mushib, AIR 1967 SC 878

Unconscionability
Central Inland Water Transportation Ltd. v. Brojo Nath Ganguly, AIR 1986 SC
1571

‘Inequality of bargaining power doctrine’

Lloyds Bank v. Bundy, [1975] 1 QB 326 (close analysis of the judgment of Lord
Denning)

Readings:

S. Swaminathan, ‘Coercion, Undue Influence and Unconscionability in Indian Law’ in Mindy

Chen-Wishart, Stefan Vogenauer and Hiroo Sono (eds.) Studies in the Contract Laws of Asia
IV : Validity (Oxford University Press: forthcoming).

Hugh Beale, ‘Unconscionability and Undue Influence’ in Andrew Dyson, James

Goudkamp and Fred Wilmot Smith eds. Defences in Contract (Hart 2016) 87-110.

Fraud

Vokes v. Arthur Murray, 212 So. 2d 1906 (1968)

Misrepresentation

Bhagwani Bai v. LIC, Jabalpur, AIR 1984 MP 126

Esso Petroleum v Mardon, [1976] QB 801

Mistake

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 Tarsem Singh v. Sukhminder Singh, 1998 3 SCC 471

K.V. Krishnaprasad, ‘Fraud, Mistake and Misrepresentation in Indian Law’ in Mindy Chen-
Wishart, Stefan Vogenauer and Hiroo Sono (eds.) Studies in the Contract Laws of Asia IV :
Validity (Oxford University Press: forthcoming).

Suggested Additional Readings:

Derry v. Peek, 1899 14 App Cas 337 [Fraud]

Ramesh Kumar v. Furu Ram, 2011 8 SCC 613 [Fraud]
Bisset v Wilkinson, [1927] AC 177 [Misrepresentation]
Esso Petroleum v Mardon, [1976] QB 801 [Misrepresentation]
Union of India v. Benode Kumar, AIR 1926 Cal 48 [Misrepresentation]
K.R. Raghavan v. Union of India, Delhi High Court, May 4, 1979
[Misrepresentation]
Cundy v Lindsay, (1878) 3 App. Cas. 459 [Mistake]
Bell v Lever Brothers, [1932] AC 161 [Mistake]
Smith v Hughes, (1871) LR 6 QB [Mistake]
Couturier v Hastie, (1856) 5 HLC 673 [Mistake]
King’s Norton Metal Co. Ltd v Edridge, Merrett & Co Ltd, (1897) 14 TLR 98
[Mistake]
Philips v Brooks Ltd., [1919] 2 KB 243 [Mistake]
Daiichi Karkaria v ONGC AIR 1992 Bom 309 [Economic Duress]
Raghunath Prasad v. Sarju Prasad, 1923 51 I.A. 101 [Undue Influence]
Redgrave v. Hurd, (1881) 20 Ch D 1

LEGALITY

A contract must be based not only upon the mutual assent of competent parties, but
must also have a lawful object and lawful consideration. If the object of an agreement,
or the consideration of an agreement, is not lawful, the agreement is unenforceable.

23
Please keep the following questions in the back of your mind as you go through your
reading. This will help you glean the most pertinent information from your reading
materials:

(1) When is the consideration or the object unlawful?

(2) What is an agreement in restraint of trade, and an agreement in restraint of legal
proceedings?
(3) What are agreements by way of wager?
(4) What is the difference between an unlawful agreement and an illegal agreement?
(5) What is the difference between an absolute restraint and a partial restraint?

Compulsory Readings:

Statutory Provisions:

Contract Act, 1872: Sections 23-30

Cases:

Niranjan Shankar Golikari v. Century Spinning & Manufacturing Co. Ltd., AIR 1967
SC 1098
Percept D’Markr v. Zaheer Khan, (2006) 4 SCC 277

Other Readings:

Extracts from William Shakespeare, Merchant of Venice

Suggested Additional Readings:

Patel v Mirza [2016] UKSC 42[restatement of the principle of ex turpi causa]

BOI Finance Ltd. v. Custodian and Ors., AIR 1997 SC 1952

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 CONTINGENT CONTRACTS

Contingent means that which is dependent upon something else. A contingent

contract is a contract to do or not to do something, if some event does or does not
happen.

Please keep the following questions in the back of your mind as you go through your
reading. This will help you glean the most pertinent information from your reading
materials:

(1) What are contingent contracts?

(2) How are contingent contracts enforced?

Statutory Provisions:

Contract Act, 1872: Sections 31-36

Cases:

Ramzan v. Hussaini, AIR 1990 SC 529

Ganga Saran v. Firm Ram Charan Ram Gopal, AIR 1952 SC 9

25
 DISCHARGE OF CONTRACT

Discharge of a contract refers to termination of a contract where it ceases to operate

and the rights and obligations of the parties created by the contract, come to an end.

A contract may be discharged in mainly in one of the following manners:

1. By performance
2. By agreement or consent
3. By impossibility of performance
4. By breach of contract

Contractual obligations may also be discharged by lapse of time and/or operation of

law.

Please keep the following questions in the back of your mind as you go through your
reading. This will help you glean the most pertinent information from your reading
materials:

(1) What is the difference between actual performance and attempted performance?
(2) What are the various ways in which contracts are discharged by way of agreement?
(3) What is the doctrine of frustration?
(4) What are the different grounds for impossibility of performance?
(5) What is the difference between actual breach and anticipatory breach?

Compulsory Readings:

Statutory Provisions: Sections 37-67, 73

Attempted performance

Cutter v Powell, (1795) 101 ER 573

Impossibility of performance

Taylor v. Caldwell, QB (1863) 3 B & S: 122 ER 309

Frustration of the object

Energy Watchdog v. CERC, 2017 SCC Online SC 378

26
Satyabrata Ghose v. Mugneeram Bangur, 1954 SCR 310

Discharge by agreement: novation

Ram Khilona & Ors. v. Sardar & Ors., AIR 2002 SC 2548

Discharge by agreement: alteration

Kalianna Gounder v. Palani Gounder, (1970) 2 SCR 455

M. Sham Singh v. State of Mysore, AIR 1972 SC 2440

Discharge by agreement: accord and satisfaction

Kapur Chand Godha vs. Mir Nawab Himayatali Khan, (1963 AIR 250/ 1963 SCR (2)
168)

Discharge by breach
Murlidhar Chatterjee v. International Film Co., AIR 1943 PC 34

Anticipatory breach

Hochster v De La Tour, (1853) 2 E & B 678

Discharge of joint liabilities

Devilal v. Himat Ram, AIR 1973 Raj. 39

Suggested Additional Readings:

Krishna and Co. v. The Government of A.P. & Ors., AIR 1993 AP 1 (Frustration of
Object)
Re Moore & Co. Ltd v. Landauer & Co., [1921] 2 KB 519 (Actual Performance)
Shipton, Anderson & Co v Weil Bros & Co., [1912] I KB 574 (Actual Performance)
Ralli Bros. v. Compania Nautera, (1920) 2 K.B. 287 (Impossibility of Performance)
Rash Behary Shaha v. Nrittya Gopal Nundy, (1906) ILR 33 Cal 477 (Anticipatory
Breach)
V.L. Narasu v. Iyer, ILR [1953] Mad. 831 (Self-induced Frustration)
Wasoo Enterprises v. J.J. Oil Mills, AIR 1968 Guj. 57 (Time of Performance)

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 REMEDIES

A contract when breached gives rise to damages that could be claimed by the injured
party, and in certain instances a right to demand specific performance of the contract.
“Damages”, means compensation in terms of money for the loss suffered by the injured
party. Every action for damages raises two problems. The first is the problem of
“remoteness of damage” and the second that of “measure of damages”.

Please keep the following questions in the back of your mind as you go through your
reading. This will help you glean the most pertinent information from your reading
materials:

(1) What are the various remedies available to the aggrieved party?
(2) What are direct versus indirect damages? And what are the several ways that courts
measure the amount of damages owed?
(3) What is the difference between a liquidated damages provision and one that imposes
an impermissible penalty?
(4) When can a party require specific performance of a contract?

Compulsory Readings:

Statutory Provisions:

Contract Act, 1872: Sections 73-74

The Specific Relief Act: Sections 9-19

Cases:

Remoteness of damage and Measure of damages

Hadley v. Baxendale (1854), 9 Ex 341

Transfield Shipping Inc v Mercator Shipping Inc [2008] UKHL 48

Articles:

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Niranjan Venkatesan, ‘The Contract Remoteness Rule: Exclusion, Not Assumption of
Responsibility’ in Andrew Dyson, James Goudkamp and Fred Wilmot Smith eds.
Defences in Contract (Hart 2016) 186-213.

M.V. Swaroop, ‘Money Remedies in India’ in Mindy Chen-Wishart, Alexander Loke, &
Burton Ong eds. Studies in the Contract Laws of Asia: Remedies for Breach of Contract
(Oxford: Oxford University Press 2016)

Liquidated Damages

Cases:

Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd, (1915) AC 79 (Lord
Dunedin’s opinion)
Cavendish Square Holdings v Talal El Makdessi [2015] UKSC 67
Fatehchand v Balkishan Das [1964] 1 SCR 515
Maula Bux v Union of India [1969] 2 SCC 554
ONGC v. Saw Pipes [2003] 5 SCC 705

Articles:

S. Swaminathan, ‘De-Inventing the Wheel: Liquidated Damages, Penalties and the Indian
Contract Act,1872’ (2018) 6 Chinese Journal of Comparative Law 103-117.

Duty to Mitigate
Jamaal v. Moola Dawood, (1916) ILR 43 Cal 493

Specific Relief

Specific Relief Act, 1963

Niranjan Venkatesan, ‘Specific and Agreed Remedies for Breach of Contract in Indian
Law: A Code of English Law?’ in Mindy Chen-Wishart, Alexander Loke, & Burton Ong
eds. Studies in the Contract Laws of Asia: Remedies for Breach of Contract (Oxford:
Oxford University Press 2016) 59-83.

Adequacy of Damages (The general limitation)

Beswick v. Beswick [1968] AC 58.

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Suggested additional reading:

Pannalal Jankidas v. Mohanlal, AIR 1951 SC 144

Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528
Murlidhar Chiranjilal v. Dwarkadas, [1962] 1 SCR 653
C Czarnikow Ltd v Koufos [1967] UKHL 4
Anglia Television Ltd. v. Reed, [1971] 3 All E.R. 690
Sylvia Shipping Co Limited v Progress Bulk Carriers Limited [2010] EWHC 542
Kailash Nath Associates v Delhi Development Authority [2015] 4 SCC 136

QUASI-CONTRACTS

There are also many situations in which law and justice require that a certain person
be required to conform to an obligation, although he has neither broken any contract
nor committed any tort. Such obligations are generally described as quasi-contractual
obligations. In this chapter we will under the theory of “Un-just Enrichment” and
theory of “Implied-in-fact” Contract.

Please keep the following questions in the back of your mind as you go through your
reading. This will help you glean the most pertinent information from your reading
materials:

(1) What is a quasi-contract?

(2) What are the elements of unjust enrichment?

Statutory Provisions:

Contract Act, 1872: Sections 68-72

Cases:

State of W.B. v. B.K. Mondal, AIR 1962 SC 779

Articles:

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Alvin See, ‘Recovery of Non-Gratuitously Conferred Benefit under Section 70 of the Indian
Contract Act’ in Andrew Robertson, Michael Tilbury (eds), Divergences in Private Law (Hart
Publishing 2016)

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