The Indian Contract Act is definitely no thriller. Teaching it to students, especially to those who have no intention of actually practising law, is a major task. The trick is to make it applicable to real, everyday life, since it is a fact of life that none of us can escape contracts.
When students arrive at the college at 7am, we ask them if they have entered into a contract with anybody since they got up. Of course not, they reply. Silly question. What of the toothpaste that they had bought, its flavour, the bristles on the brush, the soft ones they ordered? Did the milk have the requisite fat? Has the fees paid to the college been redeemed with proper tuition? They remain unconvinced.
Next, we ask how they travelled. Did they buy tickets or carry term passes? Did they get on and get off at the right stops? Was the service on time or close to it? Did they arrive safe? Finally, we ask if they had a contract with the transporter to safely ferry them, in time, to a designated place, for which they had paid the correct fare. Slowly, it starts to sink in.
As part of a lawfully run society, we cannot escape contracts. Everything that requires an interaction with others is a ‘deal’. One offers, another accepts. The price is agreed upon, the service or product delivered. The only variation is whether it is written, verbal, or instantaneous.
Things can go wrong, as they sometimes will. If you believe in Murphy’s Law, rest assured, it will come to pass. We, therefore, take up a classical English case, McAlister (Donoghue) vs Stevenson, following discovery of a dead snail in a dark-coloured drinks bottle after the complainant had drunk from it. She sued for mental (emotional) distress and on medical grounds.
You be the judge.
Would you pay her damages, or say that, having bought the bottle, she should have been more careful? Does any reader empty the contents of every tetra-pack into a glass, to ensure its purity? Or does one just drink it?
Donoghue was awarded costs. The judges said that it was the primary duty of a supplier to make sure that the product was safe. But, in that judgement, something significant was added, something that Indians should be concerned with. It said that there existed a right to sue for negligence as well. The latter as a tort.
Comparing the instance of a railway accident, it confirmed, “…the right of the injured railway passenger to sue the railway company either for breach of contract of safe carriage or in tort for negligence in carrying him.”
Every time one buys a ticket or pass and travels by train, road, air (or hot-air balloon!), the carrier is responsible for the passenger’s safety. Very often, in case of accidents, quick cash assistance is offered, even on the spot. It’s no generosity. A receipt is taken; and therein lies the rub. The receipt is actually a contract that ends all future claims, whereby one is signing away any further entitlement. The carrier is being let off the hook, usually for a pittance.
How many such happenings do we have in India? What is the option available to a traumatised and injured person or his more traumatised relative? First, if possible, refuse the payment, or cancel out the offending clause that says that this is the ‘full and final settlement’. There will be hullabaloo. Threats of ‘take-it-or-leave-it’ may be made, though, even after accepting such a payment, it could be construed as a contract under coercion, something any competent lawyer can easily get nullified. And, then, hit them hard with the tort of negligence for bad maintenance of tracks, coaches, helicopters, whatever.
Make ’em pay. Through their noses!