Thrills and Perils of Common Law Codification: The Case of the Indian Contract Code

The Indian Contract Act 1872 was not meant to be a straightforward codification of the fasciculus of rules that made up the English contract law of mid-nineteenth century. The drafters left out or greatly modified several rules of English law. Fast-forward by a century, however, and what one finds is that the Indian courts ended up projecting the English law, warts and all, onto a number of provisions of Act; even onto provisions which unequivocally signalled moving away from the English law.

This paper seeks to provide a theoretical account of this dissonance between the code and the case law interpreting it. It hypothesizes that the reversion to English common law is the result of underlying forces of common law adjudication which make it track the antediluvian common law rather than the ‘code’ which is supposed to supplant it.