Persistence of the ‘Codeless Myriad’: The Indian Contract Act and a Puzzle Surrounding Common Law Codification

Abstract

Abstract The drafters of the Indian Contract Act, 1872 modelled the code after the will theory and deviated from the English law in a number of areas where it ran counter to the will theory. However, when one fast-forwards by a century, one finds that the Indian courts ended up construing the Act a way that it has come to be virtually indistinguishable from English contract law, warts and all. This article seeks to examine—with a study of provisions related to consideration, privity, and stipulated sums in the Indian Contract Act—the causes for dissonance between the case law and the code. It hypothesizes that the troubles for codification—which manifest in the trajectory taken by the Indian contract code—stem from certain underlying jurisprudential features of common law adjudication which neither the adherents nor the opponents of the codification project seem to have fully grasped. These features make adjudication track the antediluvian common law rather than the ‘code’ which it is supposed to supplant. At the heart of the common law is a form of normativity (normless normativity) that at odds with the conception of normativity presupposed by a code (normativity with rules).