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Report No. 97

2.6. Discussion in Report on Contract Act.-

The hardship and injustice resulting from the present position will be dealt with in the next Chapter. Before proceeding to the next Chapter, it would be proper to mention that the question now under consideration-namely, the hardship and injustice caused by the present position did not fall for consideration when the Law Commission had occasion to deal with the Contract Act. At that time, while dealing with section 28 of the Act, the Commission examined only a very narrow issue, namely, conflict of decisions on a particular point, confined to time limit clauses in insurance policies. The Commission had no opportunity of surveying the reported cases on section 28 to decide if, from the point of view of economic justice, any change df substance was needed in section 28. Here is the relevant passage, extracted from the Commission's Report on the Contract Act.1

"57. Decided cases reveal a divergence of opinion in relation to certain clauses of insurance policies with reference to the applicability of this section. On examination, it would appear that these cases do not really turn on the interpretation of the section, but hinge on the construction of the insurance policies in question. The principle itself is well recognised that an agreement providing for the relinquishment of rights and remedies is valid, but an agreement for relinquishment of remedies only falls within the mischief of section 28. Thus, in our opinion, no change is called for by reason of the aforesaid conflict of judicial authority."

1. Law Commission of India, 13th Report (Indian Contract Act, 1872), para. 57 (September, 1958).

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

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