Swaminathan, Shivprasad (2016) In search of a mythical exception to privity in Indian law. Journal of Malaysian and Comparative Law, 43 (01). pp. 53-68.
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Abstract
In a recent judgment, Utair Aviation v Jagson Airlines, the Delhi High Court formulated a novel ‘conduct, acknowledgement and admission’ exception to the privity of contract requirement. Two influential treatises on Indian contract law, Avtar Singh’s Contract and Specific Relief and Frederick Pollock and Dinsha Mulla’s Indian Contract Act 1872 too, recognise the exception and cite a long list of authorities in its support. This article argues that neither is the exception doctrinally warranted—based as it is on a problematic reading of the authorities cited in its favour—nor its invocation in the case or by the treatises justified. The Court’s claim that the ‘width’ of section 2(d) of the Indian Contract Act which, unlike the English definition of consideration, allows consideration to move from the promisee or another person, provides the doctrinal basis for an expanded list exceptions to the privity rule, will be contested. It will also be argued that the purported exception is rendered conceptually redundant by section 2(d) of the Indian Contract Act 1872. The discussion will have for its backdrop, the contrast between the English law and the Indian Contract Act on two cognate ideas, namely, privity of contract and privity of consideration, the conflation of which, it will be argued, engenders some of the confusion in the case under discussion.
Item Type: | Article |
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Keywords: | Contract law | Indian Contract Act |1872 | Indian |
Subjects: | Social Sciences and humanities > Social Sciences > Social Sciences (General) |
JGU School/Centre: | Jindal Global Law School |
Depositing User: | Amees Mohammad |
Date Deposited: | 27 Apr 2022 03:41 |
Last Modified: | 27 Apr 2022 03:41 |
Official URL: | https://ijie.um.edu.my/index.php/JMCL/article/view... |
URI: | https://pure.jgu.edu.in/id/eprint/2656 |
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