AdvocateKhoj
Login : Advocate | Client
Home Post Your Case My Account Law College Law Library
    

Report No. 199

Unfair (Procedural & Substantive) Terms in Contract

Contents
Chapter I Introductory
Introductory
Unfair Terms legislation not an obstacle to foreign investment
Chapter II The Present State of Law in India and Need for Improvement
The Present State of Law in India and Need for Improvement
Section 23 of the Indian Contract Act, 1872: Illegality and public policy
Section 23 and Public Policy
Section 27 of the Indian Contract Act
Section 28 of the Indian Contract Act
Section 28 saves two types of contracts under the exceptions
A recent judgment of the Supreme Court requires mention in this context
Sale of Goods Act, 1930
Judicial Review of contracts entered by an authority which is a 'State' within Article 12 of the Constitution and application of Art 14
Monopolies and Restrictive Trade Practices Act, 1969
Section 2(o) has laid down the principles and basis of determining what is a 'restrictive trade practice' as under
Consumer Protection Act, 1986
Competition Act , 2002
Specific Relief Act, 1963 merely grants discretion to Courts to refuse specific performance
Usurious Loans Act, 1918: Reopening of transactions
Industrial Disputes Act, 1947
Provisions of Indian Contract Act, 1872 and other existing laws referred to above are not sufficient to meet the problems of today
Chapter III Standard form Contracts and Their Nature
Standard form Contracts and Their Nature
The Standard form contracts: original purpose disclosed
Interpretational issues in standard form contracts
Supreme Court on Contracts by Government and Public Institutions and Art 14
Other Contracts
Chapter IV Judicial Prouncements in India on Unfair Terms
Judicial Prouncements in India on Unfair Terms
The Central Inland Water Transport Corporation Limited Case
Section 208. Unconscionable Contracts Term
Uptron's case: (AIR 1998 SC 1681)
Delhi Transport Corporation's case: (AIR 1991 SC 101)
LIC v. Consumer Education & Research Center: 1995 (5) SCC 482
Pawan Alloys Case, AIR 1997 SC 3910
Conclusion
Chapter V Unfair Terms in Contract - A Comparative Study
Unfair Terms in Contract - A Comparative Study
Position in U.S.A.: American Restatement (Second Edition) and UCC: Unconscionability
Wentz's Case
New Principles of procedural and Substantive Unconscionability (USA)
Australia
The Contract Review Act, 1980 (New South Wales)
Section 7 which deals with 'principal relief in respect of unjust contracts reads as follows
Trade Practices Act, 1974 (Australia)
Uniform Consumer Credit Code (UCCC)
Fair Trading Act, 1999 (Victoria):
Fair Trading (Amendment) Act, 2003 (Victoria)
Amadio's case
Position in United Kingdom
Unconscionability and equity jurisdiction of Courts in United Kingdom
Unconscionability at Common Law in United Kingdom
Legislation in United Kingdom
The basic features of Unfair Contract Terms Act, 1977 (UK): (UCTA)
The basic features of Unfair Terms in Consumer Contracts Regulation, 1999 (UTCCR)
U.K. Law Commission's Consultation Paper
U.K. Law Commission: Final Report (No.292)
European Council Directive (1993) Applicable to UK and the Regulations of 1994, 1999 and 2001
Canada
New Zealand
South African Law Commission
Discussion Paper 65 on Unreasonable Stipulations in Contracts and the Rectification of Contracts (1996) amd Final Report (1998)
Chapter VI Common Law: Unfairness in Regard to Specific Performance of Contract Terms
Unfairness in Regard to Specific Performance of Contract Terms
Chapter VII Need To Have Procedural and Substantive Divide
Need To Have Procedural and Substantive Divide
Prof. Leff starts in his lengthy paper by a criticism of s. 2.302 of the Uniform Commercial Code
He observed (p. 539)
Chapter VIII Procedural Unfairness: Comparative Law
UCTA (1977): (procedural unfairness)
UTCCR (1999): (procedural unfairness)
Fair and Reasonable Test: (procedural)
South Africa
Guidelines to Court: Procedural aspects
Canada (procedural unfairness)
Australia (procedural unfairness)
Section 14: Executed Contracts
New Zealand (procedural unfairness)
Chapter IX Substantive Unfairness: Comparative Law
United Kingdom
UCTA (1977) (substantive unfairness)
Bill of 2004 prepared by UK and Scottish Law Commissions)
South Africa: Provisions of the Draft Bill attached to the S.A. Law Commission Report, 1998 (p 47)
Section 1(3): Preventing unfairness
Canada: (substantive unfairness)
Australia: (substantive unfairness)
New Zealand: (substantive unfairness)
Chapter X Segregating Procedural and Substantive Provisions of The Indian Contract Act, 1872 and The Specific Relief Act, 1963
Segregating Procedural and Substantive Provisions of The Indian Contract Act, 1872 and The Specific Relief Act, 1963
(A) Procedural unfairness: Indian statute law:
Indian Contract Act, 1872
Specific Relief Act, 1963
(B) Substantive unfairness: Indian Statute Law
Indian Contract Act, 1872
Specific Relief Act, 1963
Chapter XI Need To Define 'general Procedural Unfairness' and 'general Substantive Unfairness' Under The Indian Law
Need To Define 'general Procedural Unfairness' and 'general Substantive Unfairness' Under The Indian Law
In Irrawady Flotilla Co. vs. ILR 18 Cal. 620 (PC), the Privy Council observed
Chapter XII Discussion and Recommendations for Draft Bill (2006) on Unfair Terms (Procedural and Substantive)
Discussion and Recommendations for Draft Bill (2006) on Unfair Terms
Section 2(i) defines 'voidable contract' as follows
Our definition of 'contract' in section 2(a) of the Bill will be as follows
Hence, we propose to define 'Court' in section 2(b) as follows
Procedural unfairness separately defined in section 5
Debate whether mere proof of procedural unfairness has to be coupled with some unfair advantage or unfair disadvantage
learned Judge referred to what Richard A. Lord stated in the Commentary on, Williston on Contracts (4th Ed) (1998)
Guidelines: for procedural unfairness: section 6
General substantive fairness: section 12
Section 62 of the Sale of Goods Act states
Choice of Law
Burden of Proof
Section 15: Act to apply to executed contracts
Section 17: Reliefs to be granted by Court
Section 18 applicability of the Act and exemptions
Annexure Unfair (Procedural and Substantive) Terms in Contract Bill, 2006
Chapter I Preliminary
1. Short title, extent and commencement
2. Definitions
Chapter II Procedural Provisions and Procedural Unfairness
3. Procedural provisions of the Indian Contract Act, 1872 (9 of 1872)
4. Procedural provisions of the Specific Relief Act, 1963 (47 of 1963)
5. General procedural unfairness
6. Guidelines for purposes of determining general procedural unfairness under section 5
Chapter III Substantive Provisions and Substantive Unfairness
7. Substantive provisions of the Indian Contract Act, 1872
8. Substantive provisions of the Specific Relief Act, 1963
9. Exclusion or restriction of certain liabilities to be substantively unfair
10. Exclusion or restriction of rights, duties or liabilities referred to in section 62 of the Sale of Goods Act, 1930
11. Choice of law clauses
12. General substantive unfairness
13. Guidelines for purposes of determining general substantive unfairness under sections 9 to 12
14. Burden of proof
15. Provisions of the Act to apply for executed contracts
16. Court's power to raise an issue of unfairness of contract or a term thereof
17. Relief that may be granted by Court
18. Applicability of the Act and exemptions


Law Reports Back




Client Area | Advocate Area | Blogs | About Us | User Agreement | Privacy Policy | Advertise | Media Coverage | Contact Us | Site Map
powered and driven by neosys