Considering Consideration in the Indian Law

Abstract

The requirement of consideration has been a subject of intense scrutiny by contract law scholars, judges, and practitioners alike. Some have argued that consideration does not form the essence of contract law and must be abolished. This debate has entered the Indian contract law jurisprudence and the dominant conception of consideration in the Indian contract law (that its position in the Indian law is the same as common law) has been called into question. It has been argued that that the definition of consideration in the Indian Contract Act, 1872 is a step away from the traditional common law conception of consideration as something which can be measured in terms of money or money’s worth (objective conception) and is wide enough to cover subjectively manifested promises. In this paper, I argue that consideration under the Indian Contract Act was never meant to cover subjectively manifested promises. Furthermore, the consideration requirement helps to build a distinct kind of relationship between parties to an agreement that justifies its continued existence. With this background, I explain the substantive features of the consideration requirement under the Indian Contract Act, 1872.

Keywords: Indian Contract Act, Contract Law, Promise Theory, Bargain Theory, Contract Theory, Private Law