Eclipsed by orthodoxy: the vanishing point of consideration and the forgotten ingenuity of the Indian contract act 1872

Swaminathan, Shivprasad (2017) Eclipsed by orthodoxy: the vanishing point of consideration and the forgotten ingenuity of the Indian contract act 1872. Asian Journal of Comparative Law, 12 (1). pp. 141-165. ISSN 19320205

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Abstract

The definition of consideration in Section 2(d) of the Indian Contract Act 1872 substantially anticipated the far-reaching reforms to the orthodox doctrine of consideration that were proposed by the English Law Revision Committee (1937). These included making enforceable, through the doctrine of promissory estoppel, promises without consideration in the traditional sense that were meant to and did induce reliance; making enforceable a promise to perform a pre-existing duty; and making binding a promise to keep an offer open. The pivots of the definition in Section 2(d) were: a ‘subjective’ conception of consideration on which value was to be measured by the desire of the contractors alone, as opposed to an external standard; a concomitant purging of the traditional requirements of benefit and detriment; and the recognition of induced reliance as a form of consideration. The definition was designed to mark the vanishing point of consideration without having to formally abolish it. This design, however, went awry as courts and scholars in India projected the orthodox English model of consideration, replete with benefit and detriment, and external standards of value, upon this provision. Consequently, an ingenious piece of draftsmanship came to be eclipsed by orthodoxy.

Item Type: Article
Keywords: Orthodox Doctrine | Estoppel | Ingenuity
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Amees Mohammad
Date Deposited: 11 Jan 2022 06:47
Last Modified: 14 Feb 2022 06:37
Official URL: https://doi.org/10.1017/asjcl.2017.5
URI: https://pure.jgu.edu.in/id/eprint/678

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