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Report No. 97

3.2. Prescriptive clause and the freedom of contract.-

In support of the present position, it might be argued that substantive rights, which themselves flow from a contract, can be left to be dealt with by the contract itself. But we are not impressed by this argument. The barring of remedy affects only the adjective part of the legal system, while extinction of the right may cause serious hardship and injustice. It is difficult to understand why the parties should be allowed to invent their own rules of prescription, when they are not allowed to invent something lesser-their own rules of limitation.

This position is prima facie illogical, and we have not been able to think of any countervailing or overriding consideration that may justify the illogicality. The present misconceived approach has taken root because it is overlooked that limitation and prescription are both the result of one identical circumstance-the running of; time. In fact, the Limitation Act is not confined to limitation only. It provides for prescription also, in 'certain circumstances.

Section 28 of the Indian Contract Act, 1872 - Prescriptive Clauses in Contracts Back

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