Chapter 4 provides an historical overview of the content and objectives of the EU’s policy on unhealthy lifestyles. It distinguishes two periods. The first spans from the early days of European integration until the entry into force of the Treaty of Maastricht, in 1993. It is a period of negative integration: unhealthy products are regulated mostly through the prism of the TFEU internal market freedoms. One cannot yet speak of an EU ‘policy’ on the matter, in the sense of a deliberate and coordinated action made in response to the health burden associated with unhealthy lifestyles. This changes post-Maastricht, the second period, with the recognition of a formal competence for the EU in health matters. Unhealthy lifestyles are singled out as one of the key priorities of EU health action and a greater role is given to positive integration, with the adoption of various horizontal legislative instruments. Different approaches emerged for the three categories of products: while the declared goal is to bring tobacco consumption to a near end, alcohol consumption is considered to be a natural part of human life, not to be overly discouraged, with food and nutrition positioned somewhere in between.

Co-management is in essence about collaboration and participation. In this chapter, definitions are provided for each, with recurring themes identified from definitions of collaboration and collaborative governance. The chapter explores these key themes in relation to the ‘what, who, how and why’ of collaboration, moving to distinguish between cooperation, coordination and collaboration, the nature of leadership in collaboration and the relevance of scale. The chapter then moves on to review the meaning and practice of participation, reflecting on the ‘why, who, how and when’ of participation. Challenges to meaningful participation are identified, noting critique of the adoption of a mechanical, technical approach rather than recognising the political and empowering potential of participation.

When a party's consent has been vitiated (on one of four specified grounds), the Contract Act characterises the affected contract as a ‘voidable’ contract. This implies that the party whose consent has been vitiated has an option: he or she can continue with the contract, or he or she can choose to put an end to it. When the party exercises its right to put an end to the contract, the party is said to ‘rescind’ the contract. In this chapter we examine this remedy of rescission: when it arises, the implications of its exercise and when it may be lost or barred.

GROUNDS FOR RESCISSION

Sections 19 and 19-A of the Contract Act specify that the right to rescind arises if consent to an agreement has been caused by coercion (as defined in Section 15), undue influence (as defined in Section 16), fraud (as defined in Section 17) and misrepresentation (as defined in Section 18). These four vitiating factors have been discussed in detail in Chapters 7 and 8.

It is worth noting that the remaining two vitiating factors discussed in Chapters 6 and 9 have a different effect: incapacity and mistake render agreements automatically ‘void’ (as opposed to ‘voidable’). To this extent, incapacity and mistake have more severe implications for (purported) contracts than the other vitiating factors identified in the Contract Act.

Under the doctrine of privity, a contract confers neither rights nor obligations on any persons other than the parties to the contract. Thus, ordinarily, a stranger can neither sue to enforce a contract nor can contracting parties enforce obligations against a stranger. Where a contract provides for a benefit to a third party, a contracting party may no doubt sue to secure that benefit for the third party, but the standing of the third party to maintain an action directly is governed by the doctrine of privity. This chapter explores the extent to which the English law doctrine of privity applies in India, and the recognised exceptions to this doctrine.

THE GENERAL RULE: THIRD-PARTY BENEFICIARIES LACK STANDING

The English law doctrine that a stranger to the contract cannot sustain an action on the promise made between two persons is set out in Tweddle v. Atkinson. The extent to which this doctrine applied under Indian law created a divergence of opinion between different High Courts. A case came before the Madras High Court where A had agreed to sell a property to B, stipulating that B would pay off C who was A's creditor. The question arose whether C could sue to enforce that stipulation. In Tirumulu Subbu Chetti v. Arunachalam Chettiar the Madras High Court extensively surveyed the case law, and concluded that ‘the balance of authority is in favour of the view that a stranger to a contract cannot without more sue to enforce it’.

An agreement that is not supported by consideration will not be enforceable as a contract. The requirement that agreements be supported by consideration effectively removes gratuitous promises from the scope of the law of contract. In broad terms, it serves to mark out typical commercial transactions in a market economy from other types of transactions where the law will leave people free to break their promises.

Scholars have questioned the rationale for the requirement of consideration, and, at one time, the Law Commission asked whether the doctrine should be abolished. The Law Commission eventually concluded that the doctrine was ‘firmly rooted’ in the Indian law of contract and should be retained. The doctrine serves a paternalistic function in that it allows persons who have made extremely generous promises to change their minds. It also serves to focus scarce judicial resources on the task of facilitating commerce (as opposed to the arguably less significant task of detecting, and giving effect to, gratuitous promises made in non-commercial settings).

In the remainder of this chapter, we examine (a) the definition of consideration in the Contract Act, (b) the requirement that consideration must be bargained for, (c) the question of who can give and receive consideration, (d) the requirement that consideration must be of value, (e) how consideration operates in the context of preexisting duties, (f) the complex question of whether consideration is required in the context of variations to contracts and (g) the exceptions from the consideration requirement provided for in the Contract Act.

The Indian law of contract dates back to late nineteenth-century legal codification efforts by British colonial administrators. Those codification efforts were largely based on the (uncodified) English law of contract as it stood at that time, with some borrowing from the Field Code which sought to codify contract law in New York. Contemporary Indian contract law is a complex blend of these colonial codes, further amendments and, crucially, a vast body of case law developed by the Indian courts which takes into account the Indian commercial and social context.

The colonial origins of Indian contract law imply that an understanding of the current or historical English law position can can be of some assistance when applying the key statutes. The extent to which reliance on English law is actually of assistance in any given case is a more controversial issue, and one which we address in greater detail below. In this regard, it is important to appreciate that the codification of Indian contract law involved certain deliberate departures from the then-prevailing English law of contract. For example, the rules relating to penalties in Section 74 of the Indian Contract Act, 1872 (the Contract Act) and the definition of consideration in Section 2(d) of the Contract Act reflect material deviations from comparable English law rules.

During the colonial period, the various Presidency and Provincial High Courts of British India generated a large body of judicial decisions on points of contract law. The Privy Council, sitting in London, was the final judicial authority during that period. It is noteworthy that, after independence, the Supreme Court has almost invariably chosen to follow the pre-independence judgments of the Privy Council regarding the Contract Act. More generally, the shifts brought about by Indian independence did not result in a fundamental change in terms of how the courts approached the law of contract.

Indian contract law, a hybrid of common law and statute, is uniquely positioned among the legal systems of large economies. This book offers a detailed exploration of how Indian contract law has evolved to reconcile historical precedent with modern commercial challenges.

There are several reasons to applaud this contractual joint venture.

First, this book is more about concepts, analysis and the evolution of doctrine than a mere digest of the law or an aggregation of legal material. Each of the 22 chapters reflects an analytical approach and each chapter tries to identify the key doctrinal questions, and to answer them in as straightforward a manner as possible. There is no escapism, nor any obfuscation by language. Moreover, the book subjects the vast landscape of judicial precedent to rigorous critical analysis rather than indiscriminately citing every authority. It also maintains a constant vigil and a fine balance in determining when Indian law is similar to, or different from, English law. In effect, it encourages us to think critically about contract law and its future. I would go so far as to say that this book is not just a legal textbook; it is a contribution to the ongoing dialogue about how law and society interact.

Second, the book amazingly also performs the dual function of a very useful and very up-to-date compendium on the Indian law of contract, of great utility to practitioners, students, analysts, academics and laypersons alike. It does not masquerade in different colours for different consumers but combines a good, synergic offering to audiences of diverse needs, profiles and perspectives. That is partly because this contractual joint venture involves two active practitioners who, between them, have a deep insight into the nitty-gritty, operational realities of contract law as applied in both Indian and English courts.

Chapter 5 continues the overview through a different analytical lens. It investigates the EU’s toolbox, describing and classifying the regulatory tools used by the EU legislature across the different lifestyles. It identifies four main types of interventions: ban and composition requirements, tax and price measures, rules on advertising and promotion and rules on mandatory and voluntary information. Beyond this systematic description and classification, the chapter serves three aims. First, it confronts the regulatory tools used with the stated objectives of EU lifestyle policy, assessing their adequacy and suggesting possible reforms. Second, it highlights the significant regulatory disparities existing between lifestyle risk factors, critically evaluating the justifications for such differential treatment. Third, it shows how health and internal market objectives are intertwined in EU lifestyle policy, generating legal frictions.

Under the scheme of the Contract Act, any enquiry as to contract formation must begin with ‘offer’ and ‘acceptance’. This is because the Contract Act provides that for there to be a ‘contract’, there first needs to be an ‘agreement’. In turn, the definition of an ‘agreement’ in the Act presupposes the existence of a ‘promise’ (supported by consideration). And it is the ‘acceptance’ of an ‘offer’ (or ‘proposal’ to use the language of the Contract Act) that results in a ‘promise’. As such, ‘offer’ and ‘acceptance’ are the basic elements without which there cannot be a ‘contract’ under the Contract Act.

The Indian Contract Act addresses offer and acceptance in Sections 2(a), 2(b) as well as Sections 3 to 8. These provisions govern how offers and acceptances are to be communicated, how and when they may be revoked, acceptance by conduct and the critical requirement that in order for there to be a concluded contract, acceptance must be absolute and unqualified.

In practice, most commercial contracts are in writing and are signed by both parties. As such, there is limited scope for disputes about whether there has been acceptance of an offer in that context. Nevertheless, as the cases discussed in this chapter show, disputes about contract formation do arise. And when they arise, a clear understanding of the statutory scheme is required to determine whether a contract has been formed or not.

OFFER

The term ‘proposal’ (which is synonymous with ‘offer’) is defined in Section 2(a) of the Contract Act as follows: ‘[w]hen one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence….’ In order to take effect, an offer must be communicated to the counterparty. Sections 3 and 4 of the Contract Act indicate that the communication of an offer is ‘complete when it comes to the knowledge of’ the counterparty.

This chapter is centred on the tension between public funding and public health, and on how decisions about resource allocation can shed light on the state’s intention about practices to select against disability. This is particularly relevant in relation to the broader analysis of eugenics in this book, because a eugenic intention might seem more likely if there is a state intention to avoid the higher costs of health and social care for disabled people. Although the mere fact that the parents of disabled children bear additional costs might not be sufficient evidence of eugenics, a more revealing examination of the state’s intention can be made through a comparison of different funding decisions. The chapter also examines two areas of decision-making where cost calculations might be relevant: in relation to decisions about public funding for the prenatal detection of Down syndrome, and to decisions about the treatment of very ill infants. While explicit cost–benefit analysis might seem to be ethically unacceptable, this analysis could nevertheless be an implicit consideration, and the concealment of this consideration could constitute a form of manipulation.

International investment law is a regime in search of its identity. At the core of this search, a central role is played by ‘comparativism’ (or comparative reasoning) as a method of interpretation employed by investment tribunals. It explores how comparative reasoning fits into the theory of sources, and how this method is used by arbitral tribunals to convince their audience. The chapter finds that arbitral tribunals regularly rely on customary international law, general principles of law, as well as previous judicial decisions, when interpreting IIAs provisions. However, in doing so, arbitral tribunals display a selectivity in the choice of domestic rules or systems considered for this purpose. Relatedly, when relying on previous judicial decisions, they do not always enquire sufficiently into the similarity (or lack thereof) between the past judicial decisions and the present issue at hand. The chapter concludes that arbitral tribunals rely on comparative reasoning to strengthen or justify the choices made in the course of interpretation.

This Introduction sets out the book’s central aim, and it also provides an overview of the main arguments with summaries of subsequent chapters. The starting point for this book is that there is a need to test a common assumption about the widespread use of techniques and procedures used to prevent the birth of a disabled child: that in a modern liberal state this practice is mainly or solely a matter of individual choice, and that the state itself is neutral. Further, it might be assumed that this neutral stance would allow the modern liberal state to maintain its stated commitment to equality, and that it provides a shield against any charge of eugenics. The Introduction begins to explain how this common assumption will be tested, by reference to interpretations of a neutral state intention. It also emphasises the book’s original contribution: while there is already extensive literature on the ethics of selecting against disability, this book is distinctively centred on an analysis of the state’s position.

This chapter examines how state neutrality can be assessed by reference to the provision of certain information, with a particular focus on information provided through prenatal testing programmes. The information that parents receive about prenatal tests and procedures, and about disability, can be powerfully influential, and can shape the choices that are made. The chapter reviews a number of reasons why the provision of information might not reflect a neutral position: the information might be overly negative about disability, for example, and there is a risk that women will be blamed for any choice that they make. Although it must be acknowledged that it is not possible to have an entirely neutral framework, the chapter compares and evaluates different options that are thought to support autonomy. The chapter also considers nudge theory in order to critically assess both the state’s intention and some limits to individual choice. Although many of these limits are ones that the state cannot entirely avoid, it is important to consider how they put the parents in a particularly vulnerable position, where there is a risk of manipulation.