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4 Issue 2 Indian J.L. & Legal Rsch. 1 (2022)

handle is hein.journals/injlolw5 and id is 1 raw text is: Indian Journal of Law and Legal Research A BRIEF HISTORY OF THE LAW OF CONTRACTS IN INDIA Gairik Sanyal, Amity Law School Kolkata Introduction Before the arrival of the British in the Indian subcontinent, civil agreements were made and honoured based on the religious laws prevalent in the country. While the courts often honoured or dishonoured contracts on the grounds only of moral precepts yet some guiding principles were used from religio legal texts. The third Indian law commission was entrusted with the task of drafting a contract act for the whole of India when the British felt the need for modern laws of contract for smooth business in India. The commission's draft bill could not fructify but set the ball rolling for future efforts in the area. The final draft of the Act which was adopted in 1872 was a motley of provisions taken from various sources. Primary among them was the British contract Act and the New York code of 1872. It was the brain-child of Sir James Fitzjames Stephens. The personal laws were applied till the enactment of the statute and even after its enactment there was some confusion regarding matters where the text of the statute was in direct contradiction to the personal laws. This was finally settled by the High Court of Calcutta in the case of Madhub chunder v. Rajcoomar Doss in 1874. The matter involved a contract in restraint of trade which was prohibited by the Indian Contract Act of 1872 but was valid according to the Hindu Law of contract prevalent at that time. The plaintiff argued that since the Indian Contract Act did not expressly repeal the Regulating Act of 1781 and since the s. 17 of the regulating act required courts to apply Hindu law to Hindus; he had made a contract good in law. It was held that the Act did apply to the Hindus having regard to the words used in clause 2 of section 1 of the Act. Despite this ruling, religious personal laws were not completely ignored while enforcing contracts simply because the Indian Contract Act was not exhaustive on the subject and required many special contracts to be still regulated by the personal laws. The judgment, however, ruled that in case of repugnancy of personal laws to the Indian Contract Act, the latter would prevail. Page: 1 Volume IV Issue H I ISSN: 2582-8878

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