The Travails of Teaching 'Offer' and ''Acceptance' in Indian Contract Law

• Author: Shivprasad Swaminathan
• Position: Jindal Global Law School, O.P. Jindal Global University
• Pages: 367-386

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2022 e Institute for Migrant Rights Press

This article builds upon the author’s blog post—meant for a more general audience—

on IndiaCorpLaw Blog. Many thanks are due to Rusha Ghosh-Dastidar for her

research assistance.

thE travails of tEaChing “offEr”

and “aCCEptanCE” in indian

ContraCt law

Shivprasad Swaminathan

Jindal Global Law School, O.P. Jindal Global University

Email: sswaminathan@jgu.edu.in

e law relating to “oer” and “acceptance” is seemingly simple when it comes to

stating it, but less than straightforward when it comes to applying. e reasoning

in this area of law is articial, contrived and “backwards.” Rather than deduc-

tively applying the denitions of “oer” and “acceptance” to real world scenarios,

courts seem to be deciding cases rst by deliberating upon a host of consider-

ations specic to the domain in which the case arises—and seem to stick the

labels “oer” and “acceptance” on to the fruits of these deliberations aerwards.

is article seeks to give heuristic short-cuts to anticipate a common law judge’s

approach to “oer” and “acceptance” cases by focussing on the “tacit knowledge”

used by lawyers to negotiate questions arising around these issues. It also seeks

to get to the heart of why applying “rules” in this area yields poor results.

Keywords: Law and culture, contract law, comparative law, legal tradition, Asian law.

IX Indonesian Journal of International & Comparative Law 367-86 (July 2022)

368

Swaminathan

A HEURISTIC CHALLENGE

For a discipline that has been variously described as “showing itself in

a mask” as Bentham put it,1or full of “chameleon-hued” expressions as

Wesley Hohfeld put it,2 the law holds no dearth of labyrinths and traps

for the unsuspecting student. Even amongst lawyers, special ridicule is

usually reserved for the common law—with its seemingly “unscientif-

ic” approach—which has been described as a “chaos with a full index.”3

Within the common law, few areas are trickier to navigate than ‘forma-

tion’ in contract law. To the onlooker, nothing could seem simpler than

“oer” and “acceptance” coming together to form an “agreement.” In

the abstract, the analysis of contract formation in terms of “oer” and

“acceptance” has an elegant simplicity about it, which is conrmed by

the many quotidian hypotheticals typically used to illustrate them. Stu-

dent textbooks start out with dibbly-dobblies settling, seemingly with-

out breaking a sweat, that basic notion of “meeting of minds” or con-

sensus ad idem in a wide variety of settings from hailing a taxi to dining

in a restaurant. Law students in India might be particularly vulnerable

to being in the thrall of this idyllic picture of oer and acceptance. For

one, the Indian Contract Act treats “oer” and “acceptance” as the basis

of an agreement and the rest of the statute is built upon its edice—and

there seems to be an unarticulated presupposition among Indian text-

book writers that something this foundational must be too straightfor-

ward to require any critical inquiry. For another, many an Indian law

student has even before setting foot in a contract class, already inter-

nalized rather poorly done hornbooks (culled out second or third hand

from textbooks) as a part of entrance examinations to law school which

misleadingly portray these doctrines in the form of “rules” from which

one can logically “deduce” answers in bloodless abstraction. Indian law

students typically come into their rst contract class with the warped

idea that what they are going to engage in contract class is a “science of

deduction” from rules they already are somewhat familiar with. It takes

1. H.L.A. Hart, Bentham and the Demystication of the Law, 36 M. L. R. 2 (1973).

2. W. N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23

Yale L. J. 16, 29 (1913).

3. G.J. Postema, Law’s System: e Necessity of System in Common Law 1 N

Z L. R. 69 (2014) (quoting omas Erskine Holland).