The Place of Reasonableness in the Restraint of Trade - Just How Much Does India Depart from the Common Law?

Abstract

In this paper, I challenge the assumption that a reasonableness inquiry finds no place in the Indian law on restraint of trade, on the basis that the supposed statutory departure from common law has been misunderstood, and the Supreme Court decisions on the issue have been misinterpreted. In other words, it is the thesis of this paper that the common law on restraint of trade is not rendered inapplicable by section 27. Given the commercial necessity of incorporating a reasonableness inquiry, and the possibility of doing so even in the current statutory framework, this paper thus argues that reasonableness can and should occupy a central role in the restraint of trade jurisprudence in India.

Keywords: Restraint of Trade, Reasonableness, Contract, Krishan Murgai, Niranjan Shankar Golikari, Section 27