Indian courts must continue to emphasize the role of parties’ intention as central to an analysis of Section 56 and do so by eliminating the perceived need to find a statutory anchor in Section 32 to give effect to the parties’ contractual terms.
Manasi Kumar, Professor, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India.
The law of impossibility contained in Section 56 of the Indian Contract Act, 1872 is a slight oddity in the common law world as it does not make any mention of the parties’ intention. While Indian courts have subordinated it to the intent of the parties, they have also insisted that it is a “positive law” that is unconcerned with the terms of the contract, which have been relegated, at least superficially, to Section 32 of the Indian Contract Act, 1872 that only imperfectly deals with the vast terrain of impossibility.
It is argued that the contradictory stance is, in part, the result of an unwarranted importance being attached to the English debates surrounding the juristic bases of the law of frustration. It is also argued that the jurisprudence would benefit from delinking the terms of the contract, specifically the terms that do not constitute conditions precedent, from Section 32.
Published in: Indian Law Review
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