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Report No. 199

Chapter X

Segregating Procedural and Substantive Provisions of The Indian Contract Act, 1872 and The Specific Relief Act, 1963

In this Chapter, we shall try to segregate the existing provisions of the Indian Contract Act, 1872 and the Specific Relief Act, 1963, in so far as procedural and unfairness of contracts is concerned. Before we refer to Indian statutes on 'unfairness' we shall make a brief reference to Ramanatha Iyer's Law Lexicon.

The author states that the word 'unfair' means 'not fair, marked by injustice, partiality or deception; not equitable in business dealings. (section 16 (1) of the Indian Contract Act, 1872)

He defines 'Unconscionable bargain' as one which no man in his senses, not under a delusion, would make on the one hand, and which no fair and honest man would accept on the other. Irreconcilable with what is right or reasonable. (section 16(3) illustration (c) of Indian Contract Act, 1872)

'Oppressive' means unjustly severe, rigorous or harsh. (section 397 of Indian Companies Act, 1956 and Order 7 Rule 11 of the Code of Civil Procedure, 1908) An act or omission may amount to oppressive conduct if it is designed to achieve an unfair advantage: (In re Five Minutes Car Wash Service Ltd: 1966 (1) All ER 242, Oppression means 'burdensome, or harsh or wrongful' according to Lord Simonds in Scottish Cognitive Society Ltd v. Meyar 1958 (3) All ER 66, as followed by the Orissa High Court in Shantiprasad Jain v. Kalinga Tubes, AIR 1962 Orissa 202)

Unfair (Procedural and Substantive) Terms in Contract Back

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