Agreements made with full capacity and free consent may nevertheless be void, on account of illegality. The rationale for the illegality defence is that the law, as a whole, would be internally inconsistent if binding contracts could be used to undermine its various other regulatory objectives.1 To take an obvious example, if there is an agreement to commit a murder for hire, the law would not enforce such an agreement, given the law's policy objective of protecting life. Likewise, enforcing agreements between co-conspirators to defraud a third party would undermine the regulatory objective of preventing fraud.

While the illegality defence can serve to promote regulatory objectives, it can potentially lead to injustice. It may result in the enrichment of a party who is complicit in the illegality, and can impose financial losses that are far in excess of the fines imposed or compensation provided for under the specific legal regime that would have been infringed by the illegal conduct. These complexities have led two common law jurisdictions2 to conclude that the appropriate solution is to confer discretion on courts to determine how the private law of contract should respond to illegality (or other disfavoured conduct) in any individual case. The Contract Act does not take this approach: it lays down a binary rule to the effect that all illegal contracts will be void.

Section 23 is the key provision in the Contract Act on illegality.3 Under that provision, if the ‘object or consideration’ of an agreement is unlawful, the agreement is ‘void’. In addition to the general rule set out in Section 23, four further provisions – Sections 26, 27, 28 and 30 – define particular types of agreements that are declared unenforceable on account of their content.

The introduction of co-management is often associated with recognition and allocation of property rights. This chapter therefore provides definitions of the concepts of property, property rights and property regimes. Systems informed by economic theory to provide ‘user rights’ are reviewed in relation to collaborative governance, including Transferable Quota systems and Territorial User Rights for Fishing. Given that rights may be contested and not realised in practice, the chapter goes on to consider the pursuit and realisation of justice through co-management, differentiating between procedural, distribution and recognition justice. Insights from the application of a human rights based approach to natural resource governance and implications for co-management are then identified.

This chapter delineates the personal scope of rights holders under the right to science as articulated in Art. 15(1) ICESCR. Recognising rights holders as active participants in the human rights framework, it identifies and analyses three distinct categories: private persons (individuals, groups and collective entities), legal persons (including universities, research institutes and corporations) and future generations. The analysis clarifies the nuanced differences between individual, communal and community rights holders, highlighting the active and passive roles individuals and collectives can occupy within the right to science. The chapter further explores the evolving recognition of future generations, emphasising their emerging relevance due to the intergenerational impacts of science and technology, especially concerning climate change, biodiversity and ethical implications of scientific advancements.

Chapter 3 investigates the EU’s competence to regulate unhealthy lifestyles. Two main rationales for EU intervention in the field can be found in the TFEU. The first, historically and conceptually predominant, is related to the market. EU regulation contributes to the establishment of the EU internal market, by addressing the externalities of Member State lifestyle policies and their restrictive effect on free movement, of goods in particular. This rationale corresponds to broad and functional powers to eliminate trade barriers between Member States, via the EU’s fundamental free movement provisions, so-called negative integration, and the harmonisation of health standard at the EU level, positive integration. The second rationale concerns health as a standalone value, independent of the economic dimension of unhealthy lifestyles. For this rationale, the EU has been granted a much more limited competence. This explains why, in legal terms, EU law on unhealthy lifestyles remains a form of economic and market regulation, with a key role for Article 114 TFEU.

Fraud and misrepresentation can vitiate a contract and render it voidable. The underlying principle is that a party should be permitted to avoid a contract if its consent was based on an error which was induced by the counterparty. Fraud and misrepresentation are frequently invoked vitiating factors and this topic is, therefore, of considerable practical importance. Although fraud and misrepresentation cases inevitably involve heavily contested questions of fact, they can also raise complex legal issues. The Indian law on this topic is surprisingly unsettled, including on fairly fundamental points such as monetary remedies.

In assessing this subject, four preliminary points should be borne in mind.

• • First, the defence of fraud or misrepresentation is concerned with misstatements, silence or other culpable conduct prior to the formation of a contract. It is not concerned with actions or omissions of the parties at the stage of contractual performance.

• • Second, this defence is distinct from the defence of non est factum which is concerned with misleading conduct regarding the content of a written contract. When non est factum applies, the contract is void (as opposed to voidable).

• • Third, in addition to furnishing grounds for rescission, fraud and misrepresentation can also generate claims for damages in tort and (arguably) claims for monetary and other relief under Section 19 of the Contract Act.

• • Fourth, in the case of contracts with the government or a governmental entity, cases of fraudulent misrepresentation at the pre-contractual stage are often dealt with by blacklisting the misrepresenting agency. Such action is taken in terms of tender conditions, and in adjudicating upon such actions recourse is often had to the tender conditions as well as applicable administrative law.

Power is fundamental to co–management in numerous ways. In this chapter, key theoretical approaches to the concept of power are reviewed, drawing on conceptions of ‘power over’, ‘power to’ and similar. The chapter then investigates the concept of power in three ways: what power sharing means and how it is experienced, what dominant power relations are observed in co-management and what empowerment means in the context of co–management. In relation to power sharing, it is found that power is often unequally shared, with government having greater power than resource users, evidenced in control of resources and decision-making. Dominant power relations include elite capture, patron–client relations and gender relations. Constraints on the potential for co–management to be empowering for resource users are found to be related to power dynamics and unequal power sharing, encouraging a more technical approach to empowerment being taken rather than a more critical, political approach.

In this chapter we examine the duty to perform and what the Contract Act says about how that duty is to be discharged. Although the Contract Act contains an unusually large number of provisions which relate to performance, they can be addressed under four broad headings: (a) the duty to perform, (b) statutory default terms relating to performance, (c) defences to claims of non-performance and (d) implications of performance and non-performance.

THE GENERAL DUTY TO PERFORM

Section 37 of the Contract Act imposes a general duty on parties to perform ‘their promises’. Strictly speaking, in terms of the statutory provision, there ought to be no leeway provided – performance must match exactly what was promised. The promise itself may contain a degree of tolerance but that does not undermine the general principle that the promise, however flexible it is, must be performed exactly. So, if a contract says that interest must be paid at the rate of 5 per cent, it will not suffice if interest is paid at the rate of 4.9 per cent. However, if a contract provides for delivery of coal with a calorific value of 6,000 kilocalories per kilogram (kcal/kg) but provides for a tolerance of plus or minus 10 per cent, then it suffices to deliver coal with a calorific value of 5,500 kcal/kg (only because that is within the promised tolerance of 5,400–6,600 kcal/kg).

STATUTORY DEFAULT TERMS RELATING TO PERFORMANCE

Although the question of what performance is required from each party will usually be determined by ordinary interpretation of a contract, the Contract Act nevertheless provides for various statutory default terms regarding performance. These default terms apply absent specific provision in any given contract. The Contract Act also sets out certain provisions which specify the enquiry that the court must carry out to determine what performance is actually due.

The breach of contractual obligations can, in certain circumstances, entitle the innocent party to terminate the contract. Not every breach, however, entitles the innocent party to terminate. Only some breaches have that effect. The task of identifying what separates such breaches from other (lesser) breaches is not straightforward, and the Indian Contract Act does not provide clear guidance on what constitutes the additional element that entitles a party to terminate.

In our view, the categories of breach which generate a right to terminate are not, or at any rate should not be, dissimilar from those that currently exist in English law, namely: (a) renunciation (or ‘anticipatory breach’), (b) breach of a condition, (c) (more controversially) a sufficiently serious breach of a term other than a condition or warranty (or ‘fundamental breach’) and (d) any breach giving rise to a right to terminate under an express termination clause in the contract. While termination for breach under an express termination clause stands on a separate footing, ‘repudiatory breach’ is the term we will use to describe the other three categories taken together.

ENTITLEMENT TO TERMINATE

To repeat, the entitlement to terminate arises on the occurrence of the three kinds of ‘repudiatory breach’ identified above or if the parties have contractually stipulated that a certain breach would trigger the right to terminate. There is, however, a further situation where the innocent party is able to terminate: this occurs when the innocent party is prevented from performing by the other party. Strictly speaking, the other party's conduct of preventing performance by the innocent party need not be in breach of the contract but, as it gives rise to identical remedies, this situation is also discussed in this chapter.

The main contention of Chapter 6 is that the legal predominance of the internal market objective in this field of regulation has not been to the detriment of the protection of health. While the broad reach of the TFEU free movement provisions does mean that most Member State measures can be scrutinised by the Court of Justice for their restrictive effect on cross-border trade, the case law does not reveal a consistent hostility towards national control measures. The picture is rather one of unpredictability. In addition, the harmonisation practice of the EU legislature shows that the market functions mostly as an auxiliary to health, or, at times, fades away behind the objective of health protection. This invites a re-evaluation of the concept of the internal market in EU law.

Section 10 of the Contract Act provides that an agreement can only be a binding contract if it is made between persons who are legally competent to contract.

Section 11 of the Contract Act provides three categories of persons who lack the competence to enter into contractual relations:

• • minors, that is, those who have not attained majority according to the law to which they are subject;

• • those of unsound mind, that is, those incapable of understanding the contract and forming a rational judgment as to its effect upon their interests;

• • those disqualified from contracting by any law to which they are subject.

Where incapacity is on account of any of the three categories mentioned above, it is referred to as inherent incapacity.

Cases of inherent capacity are concerned with the competence of a party to enter into a contract and, where such competence is missing, the contract is treated as a nullity, that is, it is void ab initio. However, parties may already have performed under the (void) contract and courts have had to grapple with the question of whether any remedy is available in this situation (either under the Contract Act or otherwise).

This chapter examines each of the three categories of inherent incapacity set out above and then deals with the consequences of incapacity.