Decoding the moment of contract formation: the juggle between various theories of law

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Kanishk Rai, Bhavya Sheoran


The notion of contract formation, under the Indian Contract Act (ICA), has seen certain contentious claim rise vis-à-vis its construction. However, time and again, Indian Courts have shown their resilience to stick to the interpretation that has been passed onto us by the esteemed judges of the past. Nonetheless, can contract formation really be treated as a finished issue? Is the present understanding, one that has been extrapolated from the English Law on contracts, perhaps the most effective one? This paper has attempted to answer these questions. By looking at the historical development of the moment of contract formation under the ICA, it juxtaposes its hypothetical construction under a different theory of Law. This paper also examines the practicality of the aforementioned hypothetical construction by comparing it to the different models of contract law presently operating in both common law and civil law countries and suggesting possible reconstructions of the model of contract formation under the Indian Contract Act.

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