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Eclipsed by Orthodoxy: The Vanishing Point of Consideration and the Forgotten Ingenuity of the Indian Contract Act 1872

  • Shivprasad SWAMINATHAN (a1)

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.

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Associate Professor, O.P. Jindal Global University, Sonepat, Delhi (NCR) India. This article owes its existence in more ways than one to Niranjan Venkatesan – the central ideas discussed here emerged and took shape in conversations with Niranjan and he also painstakingly commented on earlier drafts of the article. Many thanks are due to Prashant Iyengar and Rohan Alva for their discussions and encouragement; and the anonymous referees for pressing me to be clearer on some issues. I benefitted greatly from the use of the Bodleian Law Library, Oxford and the Library of the Max Planck Institute for Comparative and International Private Law, Hamburg.

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1. Pinnel v Cole (1602) 5 Co Rep 117.

2. (1884) 9 App Cas 605.

3. S 63 of the Indian Contract Act provides:

‘Every promisee may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance or may accept instead of it any satisfaction which he thinks fit.’

In what is a sign of striking doctrinal clarity, the Act does not treat the abolition of Pinnel’s rule as a tweaking of the consideration requirement at all. Rather, the change is made to stand on its own legs as a rule on accord and satisfaction. Where the Act was purportedly tweaking the consideration requirement, it did so under s 2(d) which was the definition of consideration and s 25, which enumerated the exceptions to the consideration requirement. Even as late as 1884, the House of Lords in Foakes v Beer continued to treat Pinnel’s rule as implicating the question of consideration rather than accord and satisfaction: see Michael Lobban, ‘Foakes v Beer (1884)’ in Charles Mitchell and Paul Mitchell (eds), Landmark Cases in the Law of Contract (Hart 2008) 223-68, 226. Lobban notes that correct doctrinal view of the situation was first taken by James Shaw Wiles, the editor of Smith’s Leading Cases (1856): ibid 230.

4. Hawkes v Saunders (1782) 1 Cowp 289.

5. (1840) 11 Ad & El 438.

6. s 25(2); the provision also made enforceable promises to compensate for something the promisor was legally compellable to do. Extending the same principle, s 25(3) made enforceable the promise to pay a time barred debt.

7. s 25(1). Such an agreement, however, was required to be in writing and registered in order to be enforceable.

8. Pillans v van Mierop (1765) 3 Burr 1663.This was rejected by the House of Lords in Rann v Hughes (1778) 2 Eng Rep 18.

9. Clause 10, Exception 1; Parliamentary Papers, House of Commons (1867-68) 8-9.

10. Sir George Rankin, writing extra-judicially, found s 2(d) to be the most noticeable innovation of the Act: George Rankin, Background to Indian Law (Cambridge University Press 1946) 103.

11. The Law Revision Committee, Sixth Interim Report, Statute of Frauds and the Doctrine of Consideration (Cmd 5449, 1937) passim. For a discussion on how s 63 and s 25(2) anticipated the Law Revision Committee (1937) see: Andrew Burrows, ‘Understanding the Law of Contract in Myanmar’ (2015) Oxford Legal Studies Research Paper 59/2015 <> accessed 13 December 2015.

12. AWB Simpson, ‘Innovation in Nineteenth Century Contract Law’ (1975) 91 Law Quarterly Review 247, 248.

13. James Barr Ames, ‘Two Theories of Consideration’ in Lectures on Legal History and Miscellaneous Legal Essays (Harvard University Press 1913) 323-53; The essay incorporated two articles: ‘Two Theories of Consideration-I. Unilateral Contracts’ (1899) 12 Harvard Law Review 515 and ‘Two Theories of Consideration-II. Bilateral Contracts’ (1899) 13 Harvard Law Review 27.

14. Lobban, ‘Foakes’ (n 3) 242.

15. AT Denning, ‘Recent Developments in the Doctrine of Consideration’ (1952) 15 Modern Law Review 1, 9-10.

16. ibid.

17. It is unclear why despite taking notice of the Indian Contract Act and citing s 63 in favour of his argument, Ames did not go on to discuss the definition of consideration under Act which instantiated his prescription for the ideal definition of consideration: Ames, ‘Two Theories’ (n 13) 333.

18. Warren Swain, The Law of Contract 1670-1870 (Cambridge University Press 2015) 217.

19. PS Atiyah, Essays on Contract (Clarendon Press 1986) 198.

20. Oliver Wendall Holmes Jr, The Common Law (Little Brown & Co 1881) 293.

21. See Avtar Singh, Contract and Specific Relief (10th edn, Eastern Book Company 2010) 100-101.

22. Sir Frederick Pollock and Sir Dinshah Fardunji Mulla, The Indian Contract Act, 1872 (Nilima Bhadbhade ed, 14th edn, Lexis Nexis 2012) 56, 75.

23. AC Patra, The Indian Contract Act, 1872 (Asia Law House 1966) 125.

24. Kulasekaraperumal v Pathakutty [1961] AIR Mad 405 (Madras High Court); see Avtar Singh (n 21) 127-28.

25. Chidambaraiyer v Renga Iyer [1965] AIR SC 193, 197 (Supreme Court of India).

26. The Law Commission of India, ‘Thirteenth Report, Contract Act, 1872’ (1958) 7.

27. ibid 8.

28. Motilal Padampat v State of Uttar Pradesh [1979] AIR SC 621 (Supreme Court of India). The doctrine was held to apply only to promises made by the government.

29. Bank of India v OP Swaranakar (2003) 2 SCC 721 (Supreme Court of India).

30. PS Atiyah, The Rise and Fall of the Freedom of Contract (Clarendon Press 1979) 405.

31. Martin Hogg, Promises and Contract Law: Comparative Perspectives (Cambridge University Press 2011) 87.

32. David Ibbetson, A Historical Introduction to the Law of Obligations (Oxford University Press 1999) 220; Warren Swain, ‘The Changing Nature of the Doctrine of Consideration 1750-1850’ (2005) 26 Journal of Legal History 55; David Ibbetson, ‘Privity before 1900’ in Jan Hallebeek and Harry Dondorp (eds), Contracts for a Third-Party Beneficiary: A Historical and Comparative Account (Martinus Nijhoff 2008) 93-114, 95.

33. Ibbetson, ibid 220, 221.

34. Hogg (n 31) 88-89.

35. Swain, Law of Contract (n 18) 187.

36. Ibbetson (n 32) 236.

37. Swain, Law of Contract (n 18) 187.

38. (1838) 8 Ad & E 743.

39. (1839) 10 Ad & E 309.

40. Ibbetson (n 32) 238.

41. Swain, Law of Contract (n 18) 217.

42. HT Colebrooke, Treatise on Obligations and Contracts (London 1818) 3.

43. Swain, Law of Contract (n 18) 189.

44. ibid 186.

45. Roscoe Pound, An Introduction to Philosophy of Law (first published 1922, Lawbook Exchange 2003) 274.

46. [1809] EWHC KB J58.

47. Lobban, ‘Foakes’ (n 3) 243; Michael Lobban, ‘Consideration’ in William Cornish and others (eds), The Oxford History of the Laws of England Vol XII (Oxford University Press 2010) 359-400, 399.

48. Grant Gilmore, The Death of Contract (Ronald KL Collins ed, 2nd edn, Ohio State University Press 1995) 19-20.

49. Atiyah, Rise and Fall (n 30) 452; Swain, Law of Contract (n 18) 217.

50. The Law Revision Committee (1937) remarked, ‘A lawyer instructed to prepare a code of the law of contract and starting with a clean slate would be most unlikely to adopt the doctrine [of consideration]’. The Law Revision Committee (n 11) para 26.

51. Ibbetson (n 32) 236.

52. ibid 238.

53. The phrase ‘the other side’ is a mere place holder for the different links between the promisor’s promise and the promisee’s act or abstinence or promise effected by the copula ‘at the desire of’, which will be discussed at length in Sections III and IV.

54. The Law Revision Committee (1937) (n 11) para 27.

55. s 25 Explanation (2).

56. Ibbetson (n 32) 237-39.

57. (1839) 10 Ad & E 309 (emphasis added); In Bainbridge v Firmstone (1838) 8 Ad & E 743, Patteson J emphasized on this subjective conception by holding, ‘I suppose the defendant thought he had some benefit’ in response to the objection that requesting to weight the plaintiff’s boiler was without any benefit and hence without consideration.

58. Atiyah, Rise and Fall (n 30) 449-51; Corbin termed the external imposition of ‘legal value’ by the ‘legal eye’ as ‘putting the cart before the horse’: Arthur Corbin, ‘Non-Binding Promises as Consideration’ (1926) 26 Columbia Law Review 550, 553.

59. Atiyah, ibid 451.

60. ‘The value of all things contracted for, is measured by the Appetite of the Contractors: and therefore the just value, is that which they be contented to give.’ Thomas Hobbes, Leviathan (first published 1651, WG Pogson Smith ed, Clarendon Press 1909) 115.

61. PN Daruwalla, The Doctrine of Consideration (Butterworths 1935) 239.

62. Hobbes used the terms ‘appetite and ‘desire’ interchangeably. Consider for instance, the following passage: ‘the object of any man’s Appetite or Desire; that is it, which he for his part calleth Good: And the object of his Hate, and Aversion, Evil.’ Hobbes (n 60) 41.

63. (1838) 8 Ad & E 743.

64. (1891) 124 NY 538, 27 N. E. 256 (New York Court of Appeals).

65. Ibid.

66. Atiyah, Essays (n 19) 195; Atiyah makes this remark in connection with Hamer v Sidway.

67. ibid 195.

68. See John Simcoe Saunders, The Law of Pleading and Evidence in Civil Actions vol 1 (2nd American edn, Robert Small 1831) 131: ‘consideration’ is used interchangeably with ‘motive’ and ‘inducement’.

69. Robert Merkin, ‘Historical Introduction to the Law of Privity’ in Robert Merkin (ed), Privity of Contract (Hart 2013) 1, 9.

70. ibid.

71. (1765) 3 Burr 1663.

72. (1782) 1 Cowp 289.

73. Merkin (n 69) 10.

74. Gilmore (n 48) 22.

75. Atiyah, Essays (n 19) 198.

76. ibid 198.

77. Holmes, The Common Law (n 20) 293; Sir William Reynell Anson, Principles of the English Law of Contract and of Agency in its Relation to Contract (Ernest W Huffcut ed, 8th edn, Banks and Bros 1896) 93-94.

78. Ames argued that his definition ‘unquestionably makes for individual freedom of contract and for logical simplicity in the law.’ Ames, ‘Two Theories’ (n 13) 340.

79. Hugh Evander Willis, ‘Consideration in the Anglo-American Law of Contracts’ (1932) 8 Indiana Law Journal 22.

80. Lobban, ‘Foakes’ (n 3) 242.

81. Ames, ‘Two Theories’ (n 13) 338-99.

82. Ames, ibid; Indian Contract Act s 63.

83. Lobban, ‘Foakes’ (n 3) 239. Lobban notes that not even the most willing will theorist was willing for consideration to be abolished.

84. Swain, Law of Contract (n 18) 219; Sir Frederick Pollock, Principles of Contract (7th edn, Stevens and Sons 1902) 184-85. This conundrum would also explain why Pollock thought it as one of the ‘secret paradoxes’ of the common law that a counter-promise should be sufficient consideration regardless of benefit and detriment. Someone who endorsed the subjective theory of value wholeheartedly would hardly have found it problematic: ‘Review of The Student’s Summary of the Law of Contract by JG Pease and A M Latter (London Butterworth 1913)’ (1914) 30 Law Quarterly Review 128, 129. The review is anonymous but it is believed to be by Frederick Pollock; see discussion in Swain, Law of Contract (n 18) 220.

85. Lobban, ‘Foakes’ (n 3) 242.

86. See Swain, Law of Contract (n 18) 219.

87. Ames, ‘Two Theories’ (n 13) 334.

88. Lobban, ‘Consideration’ (n 47) 379. Ames’ plea can also be seen as the appeal to bring to bear a ‘logical metwand’ on this ‘crooked cord’ of consideration.

89. AWB Simpson, A History of the Common Law of Contract (Clarendon Press 1975) 325; this is an adoption of Simpson’s remark on consideration which was made in another context.

90. For a discussion of the effect of reading benefit and detriment along broad lines on agreements to forbear from suing, see Swain, Law of Contract (n 18) 187. It is also of some importance that in defining consideration, the term ‘abstinence’ was preferred over the ‘forbearance’ which bore connotations of benefit and detriment in English law.

91. Samuel Williston, The Law of Contracts (Baker Voorhis & Co 1920) 232, 233. The reason, Williston notes, it would not be consideration is because the ‘walk was not requested as the price of the promise’.

92. Whitley Stokes, Anglo-Indian Codes, vol 1 (London 1888) 497.

93. ibid.

94. Parliamentary Papers, House of Commons (1867-68) 3; Swain, Law of Contract (n 18) 264.

95. Stokes (n 92) 546.

96. Sir Frederick Pollock and Dinshah Fardunji Mulla, The Indian Contract Act, with a Commentary, Critical and Explanatory (2nd edn, Sweet & Maxwell 1909) 14.

97. ibid 25.

98. ibid.

99. ibid vii.

100. s 780.

101. Muthukaruppa Mudali v PM Kathappudayan (1914) 27 MLJ 249; Pollock and Mulla, Indian Contract Act, 14th edn (n 22) 75.

102. AC Patra (n 23) 125.

103. Avtar Singh (n 21) 100-101.

104. Chidambaraiyer v Renga Iyer [1965] AIR SC 193, 197 (Supreme Court of India).

105. See Gopal v Hazarilal [1963] AIR MP 37, a case which, despite rightly observing that benefit is not an essential of consideration, goes on to find that there is consideration as there is benefit in the case.

106. As Daruwalla notes, the English rule is followed (Madhya Pradesh High Court) in India although ‘it is not expressly mentioned in the Act’: Daruwalla (n 61) 229. It should further be noted that it is even in Hindu Law there is no need for any ‘valuable’ consideration in the eyes of law: Daruwalla, ibid 231; The courts also followed the English rule with respect to forbearance to sue on a worthless’ claim as being without legal detriment and hence without consideration. Gopinath Bhagat v Lakshinaran Singh (1916) 32 Ind Cas 937 (Calcutta High Court).

107. [1913] 11 ALJ 489.

108. Lalman v Gauri Datt (1913) 11 ALJ 490 (Allahabad High Court). Curiously, Lalman v Gauri Datt has achieved celebrity status not as a case on consideration but as supporting the proposition that no acceptance is valid unless the offeree had knowledge of the offer. For another case supporting the pre-existing duty rule, see Ramchandra Chintaman v Kalu Raju (1878) 2 ILR Bom 362 (Bombay High Court).

109. See Ramchandra Chintaman (n 108); Muthukaruppa Mudali v P.M. Kathappudayan (1914) 27 MLJ 249 (Madras High Court); Pollock and Mulla, Indian Contract Act, 14th edn (n 22) 82-83.

110. Gopal v Hazarilal AIR 1963 MP 37 (Madhya Pradesh High Court).

111. Ames, ‘Two Theories’ (n 13) 342.

112. Kevin M Teeven, Promises on Prior Obligations at Common Law (Greenwood Press 1998) 39.

113. The Law Revision Committee (n 11) para 36.

114. Law Commission of India (n 26) 8.

115. Eric Mills Holmes, ‘The Four Phases of Promissory Estoppel’ (1996) 20 Seattle University Law Review 45, 53. Holmes argues that noting its history, ‘promissory estoppel could be renamed “reliance consideration.”’ See also Simpson, ‘Innovation’ (n 12) 249.

116. Holmes, ibid 53; JB Ames, ‘The History of Assumpsit’, (1888) 2(1) Harvard Law Review 1, 14-15; Ames, ‘Two Theories’ (n 13) 147, 148.

117. Simpson, A History (n 89) 432. This was also Ames’ point: Ames, ‘Two Theories’ (n 13) 143.

118. Simpson, ibid 446.

119. See Simpson, ‘Innovation’ (n 12) 249.

120. Theopilus Parsons, The Law of Contracts vol 2 (Little Brown & Co 1860) 517, 518; Roscoe Pound, ‘Consideration in Equity’ (1918-1919) 13 Illinois Law Review 667, 673.

121. Crosbie v M’Doual 13 Ves 148.

122. See Lobban, ‘Consideration’ (n 47).

123. Francis Dawson, ‘Making Representations Good’ (1982) 1 Canterbury Law Review 329, 342.

124. Pound, ‘Consideration in Equity’ (n 120) 679.

125. Joseph Chitty, A Practical Treatise on the Law of Contracts Not Under Seal (John A Russell ed, 5th edn, S Sweet 1853) 53; see also Lobban, ‘Consideration’ (n 47) 379; Pound, ibid 675.

126. (1860) 9 CB NS 159.

127. Lobban, ‘Consideration’ (n 47) 379.

128. ibid 380.

129. Dawson (n 123) 342.

130. Commonwealth v Scituate Savings Bank (1884) 137 Mass 301, 302 (Supreme Judicial Court of Massachusetts).

131. Lobban, ‘Foakes’ (n 3) 246.

132. ibid 247, discussing Freeman v Coke (1848) 2 Exch 654, 663.

133. Lobban, ‘Consideration’ (n 47) 367-68.

134. (1854) 5 H L C 185.

135. Lobban, ‘Foakes’ (n 3) 256.

136. (1853) 23 LJ Ex 36. For want of valuable consideration, the father’s loan to the son on the terms that he need not repay if he did not complain about the father’s distribution of property, was held not to be enforceable.

137. These were clauses 60 and 62 respectively. See Parliamentary Papers, House of Commons (1867-68) 20.

138. John R Searle, ‘A Classification of Illocutionary Acts’ (1976) 5(1) Language in Society 1, 5; see also Kent Bach, ‘Speech Acts and Pragmatics’ in Michael Devitt and Richard Hanley (eds), The Blackwell Guide to the Philosophy of Language (Blackwell 2006) 147-67, 151-52.

139. Eric Holmes points out with a reference to a wide definition of consideration in American law which included within its rubric cases of induced reliance, ‘this classification would have eliminated the need for new terminology such as promissory estoppel’: Holmes, ‘Four Phases’ (n 115) 53.

140. Kedarnath v Gorie Mohammad (1886) 14 ILR Cal 64 (Calcutta High Court).

141. Restatement of Contracts (American Law Institute 1932) §90. The 1937 Law Revision Committee used the language: ‘promise which the promisor knows, or reasonably should know, will be relied on by the promisee, shall be enforceable if the promisee alters his position to his detriment in reliance on the promise.’ It is submitted that this provision in effect amounts to the same as the American provision. One cannot ‘know’ the future but only ‘predict’ or ‘expect’ that something is likely to happen. ‘Knowing’ thus is for all practical purposes no different from ‘expecting’.

142. Central London Property Trust Ltd v High Trees House Ltd [1947] 1 KB 130; Combe v Combe [1951] 2 KB 215; Ajayi v R T Briscoe (Nigeria) Ltd [1964] 1 WLR 1326. The conception of promissory estoppel advanced by the English courts is much narrower because of the constriction that they only suspend a cause of action and do not give rise to one. Elsewhere in the common law word, this constriction has been dismantled: see Waltons Stores (Interstate) Ltd v Maher (1987) 164 CLR 387 (High Court of Australia).

143. The Indian Law Commission (1958) certainly thought that the copula ‘at the desire of’ was incapable of encompassing such cases of promissory estoppel (n 26) 7 and hence felt the need to import the doctrine.

144. (1848) 2 Exch 654, 663 (Parke B); discussed in Lobban (n 47) 247. The terms ‘subjective’ and ‘objective’ are so fraught with nebulousness – having as they do, different shades of meaning – that it might not be out of place to provide a key to the sense in which the terms are being used here, lest it lead to the perception of a tension between the ‘subjective’ tone of the promisor’s desire and its encompassing what a third person can reasonably expect – therefore, ‘objectively’ in a still unspecified sense – to be desired by the promisor. We must distinguish between ontological and semantic senses of the terms subjective and objective. In the ontological sense, the term subjective means, ‘x is constituted by the subject (person)’; and objective, as its antonym in this sense would mean ‘x is constituted by an external standard, not by the subject’. An external standard of ‘value’ which is imposed by the law would be objective in this ontological sense of the term. But there is also a much wider, semantic sense of the term used in linguistic philosophy which pertains to meaning of words. Here, subjective would mean, ‘a word means what A in her mind, subjectively intends it to mean’ and objective would mean ‘a word means what the linguistic community reasonably expects the word to me’. It is this semantically subjective sense that Humpty Dumpty sought to invoke, when he claimed that a word meant exactly what he chose it to mean – ‘neither more nor less.’ The reason why linguistic meaning can never be subjective in Humpty Dumpty’s sense is primarily epistemological – we have no access to another person’s subjective state and we are warranted to rely on external indicia that comport with reasonable expectations of the users of the language; no meaning would otherwise be possible. Now, if ‘objective’ is always used in this wider semantic sense in contract law, it would lead to the reductio ad absurdum that no contract can ever be subjective in the sense of depending on the intention of parties since all contracting uses language spoken or acted. In this context, therefore, on a proper understanding, there is no tension between the subjectivity (in the ontological sense) of desire and intention on the one hand and the objectivity (in the semantic sense) of meaning of the words or actions used to purportedly convey it. The subjective tonality of desire argued for here is meant to be ‘subjective’ in the ontological sense; and it is not at all inconsistent or in tension with the subjectivity of desire in this ontological sense to suggest that the way one epistemologically understands this ‘desire’ is not through peering into the persons subjective mind but objectively (in the semantic sense) by what is reasonably expected by a third person. For a discussion on the need to disentangle ‘intention’ qua consent in contract law from the debate on the semantic senses of objective and subjective see: Anne De Moor, ‘Intention in Law of Contract – Elusive or Illusory’ (1990) 106 Law Quarterly Review 632.

145. See Shivprasad Swaminathan, ‘Projectivism and the Metaethical Foundations of the Normativity of Law’ (2016) 6 Jurisprudence 231.

146. Lobban, ‘Foakes’ (n 3) 245.

147. Parsons (n 120) 517-19.

148. Seavey v Drake (1882) 62 N H 393 (Supreme Court of New Hampshire). See also Freeman v Freeman (1870) 43 N Y 34, 39 for a similar result.

149. James Gordley, ‘Enforcing Promises’ (1995) 83(2) California Law Review 547, 563.

150. ibid 565.

151. ibid 565 (original citations omitted). Gordley attributes this rendering of the incident to Grant Gilmore.

152. Gilmore (n 48) 145-46.

153. Pollock and Mulla, Indian Contract Act, 2nd edn (n 96) 15, 16.

154. ibid.

155. Doraswamy Iyer v Arunachala Ayyar [1936] AIR Mad 135 (Madras High Court).

156. ibid.

157. Pollock and Mulla, Indian Contract Act, 2nd edn (n 96) 16.

158. Avtar Singh (n 21) 104; Pollock and Mulla, Indian Contract Act, 14th edn (n 22) 60.

159. Law Commission of India (n 26) 7.

160. Motilal Padampat v State of Uttar Pradesh [1979] AIR SC 621 (Supreme Court of India).

161. Pollock and Mulla, Indian Contract Act, 2nd edn (n 96) 33.

162. Stephen Smith, Atiyah’s Introduction to the Law of Contract (Clarendon Press 2006) 49.

163. See Bank of India v O P Swarankar (2003) 2 SCC 721 (Supreme Court of India); Somasundaram Pillai v Provincial Government of Madras [1947] AIR Madras 366 (Madras High Court).

164. See Warren Swain, ‘Codification of Contract Law: Some Lessons from History’ (2012) 31 University of Queensland Law Journal 39-54.

165. Guido Calabresi, Common Law for the Age of Statutes (Harvard University Press 1982) 83-84.

166. RN Gooderson, ‘English Contract Problems in Indian Code and Case Law’ (1958) 16(1) Cambridge Law Journal 67, 68-9.

167. Swain, Law of Contract (n 18) 271.

* Associate Professor, O.P. Jindal Global University, Sonepat, Delhi (NCR) India. This article owes its existence in more ways than one to Niranjan Venkatesan – the central ideas discussed here emerged and took shape in conversations with Niranjan and he also painstakingly commented on earlier drafts of the article. Many thanks are due to Prashant Iyengar and Rohan Alva for their discussions and encouragement; and the anonymous referees for pressing me to be clearer on some issues. I benefitted greatly from the use of the Bodleian Law Library, Oxford and the Library of the Max Planck Institute for Comparative and International Private Law, Hamburg.

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