FROM STATUS TO

BRITISH CONTRACT
- Malvisha Jadeja
BA.LLB(HONS.)
91921040001
Introduction
• Proposed by Henry Maine.
• Was a professor of civil law in Cambridge University.
• Law member of the council of governor general of India between
1861-1869.
• The rights and duties, capacities and incapacities of the individual are
no longer being fixed by law as a consequence of his belonging to a
class.
• Sir made a comparative study of the various legal systems and traced
the course of their evolution.
Conti….
• According to him, law develops through four stages.
1. 1st stage- law was made by the commands of the ruler believed to be
acting under the divine inspiration.
2. 2nd stage- commands crystallize into customary law.
3. 3rd stage- the knowledge and administration of customs goes into the
hands of a minority, usually of a religious nature, due to weakening of
power of original law makers.
4. 4th stage- Law is promulgated in the form of a code.
• In developing his progressive principle of status to contract he was
particularly influenced by the family law of the later Roman Empire.
Static and progressive societies
• Further development by legal fiction, equity and legislation.
Progressive Societies develop their laws by three methods: legal fiction,
equity and legislation. Legal fiction changes the law according to the
changing need of the society without making any changes in the letter
of the law. Equity consists of those principles which are considered to
be invested with a higher sacredness than those of the positive law. It is
used to modify the rigour of law. Legislation comes in the last which is
most direct and systematic method of law making.
Conti…..
• Movement of Progressive societies (such as India) from Status to contract
With the march of time the system of pater families withered away and now the rights
and obligations were dependent upon the individual contracts and free negotiations
between persons. This led to disintegration of the family system and emergence of
contractual relations between individuals. In other word now the individual can take
decisions himself without being dependent upon headman of the family.
The spectacular changes in Indian laws consequent to the transition from British colonial
rule to the independence of our country in 1947 amply shows that there has been
movement of Indian society from status to contract.
Conti….
• Reversal of Trend from Contract to Status in Indian context
It must, however, be stated that with the advance of time and due to impact of
industrialization, urbanization and modernization, new problems of poverty,
hunger, ignorance and disease etc have cropped up giving rise to inequalities
between people and groups within the society.
Commenting on this reversal of Contract to status the chief justice of Bombay
high court in Prakash cotton mills limited vs. state of Bombay inter alia remarked
“we must not forget that we are no longer living in the age laissez faire and the
relation between the employer and employees are no longer solely governed by
the principles of contract. Contractual rights and liabilities are now subject to
the principles of industrial law and also principles of social justice.”