Comparative private law scholars should be delighted by Swaminathan’s book on the unique concepts found in the Indian Contract Act (ICA) and their genealogy. Swaminathan argues that existing scholarly opinion both understates and overstates the achievements of the Act, and that this is due to an under-appreciation of the genealogy of the core concepts (page xvii). A contract scholar examining the text of the ICA and the judicial decisions interpreting its provisions will be struck by the tendency to interpret the text within the doctrinal framework of English contract law. As Swaminathan points out, this results in a deviation from the overt intent evident in the text of the provisions. The meaning of the provisions tends to be moulded by the procrustean bed of English concepts. Swaminathan’s project examines in detail the dissonance between the text and its subsequent interpretation. In the process, he seeks to show the missed opportunities for Indian contract law to develop differently from English law, presumably improving upon it in some respects - even as he is mindful of its flaws. More ambitiously, Swaminathan provides a thesis for this dissonance in the final chapter of the book (chapter 10. Thrills and Perils of Common Law Codification).

The historical approach usefully underscores the reasons for the codification initiatives in British India which were later transplanted to other parts of the British Empire. Apart from the Indian Contract Act 1872, they included: the Penal Code 1860, the Evidence Act 1872, the Criminal Procedure Code 1861. Beyond the need for readily accessible legal rules for governing the Indian territories, they reflected the zeitgeist of the period: Benthamite rationalism and the zeal for systematically setting out the legal rules. In the context of the ICA, the reader is reminded of how English lawyers were fascinated by the will theory of French jurist Robert Joseph Pothier and, indeed, how his influence is reflected in the text drafted by the Law Commissioner ultimately responsible for the enacted provisions – James Fitzjames Stephen.

A good illustration of how English law was projected onto the provisions of the ICA and the provisions interpreted according to the conceptual framework of English law lies in the formation of contract. Swaminathan persuasively argues how the ICA makes conceptual distinctions between (a) the moment of contract (more properly, the moment of agreement if the nomenclature adopted in section 2 of the Act is followed), which consists of each party providing at least a proposal which has been accepted by the other (a promise); (b) the moment when communication is complete (section 4); and (c) the latest point in time for the revocation of a proposal or its acceptance (section 5). In English law, the binding nature of a promise or acceptance is closely tied to the moment of contract. By projecting this onto the ICA, the nuances between the irrevocability of a promise due to communication and the irrevocability of a promise due to formation of a contract inherent in the act were obscured. Insofar as the conceptual framework of the ICA requires an effective acceptance to form a ‘promise’ and thereon an agreement, it is a schematically workable framework which is reflected in modern conceptions of contract formation. Indeed, Swaminathan could have accentuated his point that this was a missed opportunity to improve upon English law by pointing to the UNIDROIT Principles of International Commercial Contracts (PICC). Section 2.1.1 of PICC predicates the formation of a contract on there being an effective acceptance; this in turn critically depends on there being an effective offer. An acceptance or offer which has been duly withdrawn or revoked would mean that there cannot be a contract: see section 2.1.10 (withdrawal of acceptance) or section 2.1.4(2) (revocation of offer). Had the schema contained in the ICA been developed on its own terms, the ICA may be regarded as anticipating modern restatements like the PICC.

Consideration is a second subject area which, the author argues, should have taken a different path of development from English law if the judges and scholars had taken the text on its own terms. Consideration is capaciously defined in section 2(d) as follows:

The definition is noteworthy for at least two reasons. First, there is no reference to detriment or benefit. Second, their absence together with ‘at the desire of the promisor’ portends a notion of consideration that is subjective. This contrasts with the common law notion where value in the eye of the law imports an objective element ie even if the performance or abstinence is subjectively desired, the law must regard it as objectively valuable. Third, the author argues that ‘at the desire of…’ is broader than ‘at the request of …’, and that the text admits induced reliance as consideration.

The intention to take a different direction is further evidenced by other provisions. Section 25(2) clearly reverses the common law rule that a promise given for past consideration is not enforceable (An exception to the rule that agreement without consideration is void is where there is ‘a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor…’). Another exception to the requirement for consideration lies in section 25(1): an agreement ‘made on account of natural love and affection between parties standing in a near relation to each other’ provided it is in writing and registered according to the law in force.

Materially, section 63 explicitly reverses the rule in Pinnel’s case Footnote ¹ that payment of a lesser sum of the debt cannot bind the promisor to forgive the remainder. The rule that the promisee may remit or dispense with, in whole or in part the performance is supplemented by an illustration:

While the manifest intent to depart from English law found in section 25 and section 63 was honoured, judges and scholars nonetheless projected English law onto section 2(d) by reading in an implicit requirement for objective value (‘value in the eye of the law’).Footnote ² This accounts for the Indian law equivalent of Stilk v Myrick – Lalman v Gauri Datt, Footnote ³ where a servant was denied the reward offered by the Master for finding the Master’s missing nephew on the ground that he was merely doing what he was obliged to do under his contract.

With both the leading commentators and the judges regarding section 2(d) as no different from the concept of consideration at common law, the opportunity to read section 2(d) as allowing for induced reliance was foreclosed. To the author, this was regrettable as he argues that consideration in equityFootnote ⁴ and related equitable doctrines might support the broader reading based on the text in section 2(d). From the perspective of conceptual coherence, one cannot but query whether such a development would have been a sound one. Since the elements for formation of a contract are fundamentally about what makes a legally enforceable agreement, it would be conceptually odd for an agreement to be constituted by reference to statements leading to induced reliance.

Swaminathan documents projections of English conceptions onto the ICA in a detailed manner across almost all the topics of contract law. Apart from frustration and unjustified enrichment, they include:

• • the initial negation of the notion of privity following section 2(d) which contemplates consideration being provided by ‘any other person’ and the subsequent incorporation of the privity doctrine onto the Act silent on the subject;Footnote ⁵

• • the valiant efforts at reading into the narrowly drafted provision on coercion (section 15) the doctrine of economic duress developed in the 1970s;Footnote ⁶

• • the importation of the liquidated damages-penalty dichotomy onto section 74 which was drafted to avoid the troublesome dichotomy.Footnote ⁷

What accounts for the judges and commentators projecting English law onto a number of the provisions in the Indian Contract Act – even where the provisions unequivocally sought to depart from English law? For the author, the key lies in the common law consisting of summary rules, ie ‘rules which have no logical priority over the instances of their invocation’.Footnote ⁸ This portends a habit of casuistic reasoning and a tendency to treat ‘rules’ as malleable. The author inclines toward the notion that the common law is less a body of law but ‘rather a practice of reasoning shared by the legal community’.Footnote ⁹ The author associates this with normless normativity, which in turn means that the common law ‘ought to be understood as the collective tacit knowledge of the legal profession.’Footnote ¹⁰ Accordingly:

There is certainly some truth to the notion that persons schooled in English law may wittingly or unwittingly colour their interpretation of the code by concepts they were trained in. Does this adequately explain why the commentators or judges who should be deeply conscious of the place of statutory law vis-à-vis the common law have not given the written rules the regard they normally command? After all – as the author noted in chapter 1 (Historical Background) – James Fitzjames Stephen was a ‘mediocre lawyer’ whose capacity for legislative drafting ‘was not … equal to his fondness for it.’Footnote ¹¹ Pollock was dismissive of Field’s draft New York Civil Code, from which Stephen borrowed substantially. It did not help that:

Stephen’s drafting skills were shown up in the definitions (section 2), for which he was almost wholly responsible. Pollock was highly critical of them; they were ‘in a wholly different style and not altogether in harmony with the body of the work.’Footnote ¹² Given the not unjustifiable low view of the draftsmanship that inhabits the text of the Indian Contract Act, it should be no surprise that commentators like Pollock and Mulla sought to gloss over its imperfections and render it more coherent by reference to English law. In the process, the commentators might have regarded as odd or incoherent what might today be more kindly regarded as innovations and conscious departures to improve on English law (as it then stood).

Indeed, the author might have overextended the argument that the contract law of India is in its current state due to common lawyers having a strong tendency to relapse to the (English) common law. After all, the Indian Penal Code has not met the same fate – probably because Macaulay’s drafting skills were on an altogether different level.Footnote ¹³ That common lawyers have an inclination – indeed a strong inclination – to import developments from the source jurisdiction would certainly be one factor; however, the account would be all the more satisfying if other contributing factors were also considered.Footnote ¹⁴

The book will certainly be welcomed by lawyers and scholars into whose jurisdictions the Indian Contract Act has been transplanted. The author’s research into the genealogy of concepts and the provisions of the ICA shine light on the possibilities for more originalist interpretations. The book will also be interesting for comparative law scholars who are interested in transplant of legal rules and their subsequent development – for the book is replete with instances of how legal culture trumps textual language.