CHANGING CONCEPT OF

CONTRACT-RECENT PROBLEMS
AND ISSUES
ABSTRACT
OF THE THESIS
SUBMITTED TO MAHARSHI DAYANAND UNIVERSITY, ROHTAK FOR
THE AWARD OF THE DEGREE OF

DOCTOR OF PHILOSOPHY
IN
LAW
Under the Supervision of: Submitted by:

Prof.(DR.) Badruddin Anusuya Yadav

Head & Dean Regn. 99-RUR-85
Department of Law
M. D. University, Rohtak

DEPARTMENT OF LAW
MAHARSHI DAYANAND UNIVERSITY
ROHTAK
2014
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ABSTRACT

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 ABSTRACT

The Indian Contract Act occupies the most important place in commercial law.
Without Contract Act, it would have been difficult to carry on trade or any other
business activity. The aim of the Contract Act is to ensure that the rights and
obligations arising out of a contract are honoured and that legal remedies are available
to those who are affected. The law of contract was enacted mainly with a view to ensure
reasonable fulfillment of expectations created by the promises of the parties and also
enforcement of obligations prescribed by an agreement between the parties. Proof of
some or all of these elements may be done in writing, though contracts may be made
entirely orally or by conduct. A contract is an agreement enforceable by law which offers
personal rights, and imposes ‗personal‘ obligations, which protects and enforces the
rights against the parties mentioned in the agreement. The legal personal rights and
personal obligations, arising out of a contract, depend upon the general law, but are
created by the acts of the contracting parties themselves. The law of contract differs from
other branches of law in an important respect. Its rules define the remedies that are
available in a court of law against a person who fails to perform his contract, and the
conditions under which the remedies are available. There are several agreements which
do not give rise to legal obligations. The law of contract lays down the legal rules relating
to promises, their formation, their performance and their enforceability. Moreover
modern contract law has developed itself into specialized branch of law in itself. Offer
and acceptance both must be made with the intention of creating legal relations between
the parties. The test of intention is objective. The presumed intention of the parties is an
important factor taken into consideration by the court. Where necessary, the court would
look into the conduct of the parties, for much can be inferred from the conduct. The court
is not concerned with the mental intention of the parties, but rather with what a
reasonable man would say, was the intention of the parties, having regard to all the
circumstances of the case. Modern developments have taken place in contracts which
have changed the meaning and facets of traditional contractual terms. More and more

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minors now enter into contracts in the field of entertainment and sports. No longer do the
courts stick to the notion that a contract with a minor is void ab intio. Rather, freedom of
contract rules dominates the decision of the courts in such cases. Today the contract law
needs to be taught with incorporation of newer facets of practices and issues which
confront modern-day contract. An attempt has been made in the present study to state the
positions taken by judges on the various forms of contracts in a comparative analysis of
decisions in India, the . U.K. and the America. Currently, courts and legislatures are
facing issues raised by business conducted over the Internet. The present research takes
examples and cases from the United States and the United Kingdom, where higher
education is contractual, to suggest that unless a change occurs in the Indian legal regime,
legal problem may be far more complicated than one may presume expressly set out. The
present study also highlights on the usage of securities, software, and real estate escrows
via examples. Keeping in view the rapid growth and increasing importance of the
outsourcing industry in India, it is pertinent to study the contractual aspects of how
outsourcing transactions, especially offshore ones, are agreed upon and implemented. It
becomes mandatory to look into the principles which govern these contracts due to the
difference between these contracts and other contracts in terms of consent, exclusion of
liability, bargaining power ,inability to negotiate, etc. The study also indicates that the
standard player contracts which exist in India today are highly inequitable, and India
must strive to make more conscious efforts toward the drafting of such contracts on the
basis of fairly negotiated collective bargaining agreements. Employment contract being a
standard form contract is a dynamic issue which changes with time as the nature of
employment and scope of employment progresses. The terms and conditions of an
employment contract signify the working style and culture of an organization. While
employing a person in your organization or commercial set-up, you need to define the
relationship in a fair and unambiguous manner. An employment contract helps a
company protect the interests of the organization while being fair to the employee. But in
practice the living relationships fast changing into the commercial mould under the
impact of economic liberalization sponsored by World Trade Organization When
contracts cross national boundaries, the national legal regime of any single country
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becomes inadequate to grapple with the situation. When the parties to the contract are
located in different countries, at least two systems of law work upon the transaction and
the rules of private international law come into pay. A particular law should be chosen to
be govern such contract and it would be the best way to ensure the application of a
particular legal system to international contracts is to choose a particular law to govern
this contract. Undoubtedly, with the adoption of the Information Technology Act, the
concept of electronic contracts has been legally recognized compelling modification of
traditional rules of procedure and evidence. Various dimensions of electronic and
software contracts have been emerging. In such an atmosphere the theoretical
understanding of contract law and its practical orientation, need, relevance, and
challenges must be understood in its changing nature of contract to fulfill the objectives
of the existing legislations and there should be necessary changes in the law of contracts
to examine the new facets of contractual jurisprudence which is still unexplored.
Liberalization along with rapid economic development in India has led to increasing
number of alliances between foreign and Indian companies. But, in India there is no
particular law governing joint venture agreements to deal with the various legal issues
which parties face in a joint venture. The present study focuses on the important legal
issues which the parties need to be aware of while drafting such an agreement. A well-
drafted joint venture agreement can ensure its success. The present study also deals with
problems related to jurisdiction of e-contracts, guarantee and warrantee of e-contracts,
performance of e-contract etc. There should be special rules made out universally for the
problems of hacking internet security computer viruses corrupting the documents and
files, etc. Standard trading partner agreements still assume human rules and regulation
should be made on environment protection if there is threat or risk to environment by
contracting parties. Rules relating to jurisdiction of courts on contract conflicts should be
universal. There should be amendment in private international law as regarding the place
of jurisdiction of courts.

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