May 23,2020 | 5 min read

Interplay between Torts and Section-28, Indian Contract Act

OVERVIEW:

Tort:

Tort is a civil wrong committed (act or omission) by a person for which no other law provides a remedy. Thus, keeping such miscellaneous instances in mind, Law of Torts came into existence. It ensures that nobody is deprived of justice in any aspect. Some instances of torts are trespass, assault (the disturbing mental state of a person), and battery (touching or thrashing a person). In other words, the law of tort is an instrument to ensure reasonable behaviour and respect the rights of one another. This gives rise to a legal right and legal duty as well. An act which infringes a legal right is a wrongful act, but not every wrongful act is a tort. Thus, it becomes difficult to categorise all such types of wrongdoings and formulate one specific Act for the same.

Contract Act, 1872:

Further, the Indian Contract Act too is an act dedicated to deal with civil wrongs. However, it only safeguards the interests of people in terms of Contractual Liability. Any person causing the breach of contract is liable to pay either specific damages through specific performance or ordinary damages depending on the terms and conditions agreed to. 

As we all know that contract is also a civil matter, we would understand the interplay between both (Tort and Indian Contract Act) by comparing and synchronizing Sec-28, Indian Contract Act and Law of Torts.

ANALYSIS - SECTION-28, INDIAN CONTRACT ACT:

This section renders two types of contracts as void, namely:

An agreement by which a party is restricted absolutely from enforcing its legal rights arising under a contract by the usual procedure in the ordinary tribunals.

An agreement which limits the time within which the contract rights may be enforced.

Exceptions:

Saving of contract to refer to arbitration dispute that may arise, this section shall not render illegal a contract, by which two or more persons agreed to refer any dispute arising between them in respect of any subject(s) to arbitration. Also, the amount awarded in the arbitration shall be binding on the parties.

This section shall also not render illegal any contract in writing, by which two or more parties agree to refer to arbitration any question between them which has already arisen or affected any provision of any other law.

SECTION 28 READ WITH TORTS:

Keeping in mind the provisions of Sec-28 which renders enforcement of certain rights as void, here arises the need of Torts dedicated to provide a remedy to the aggrieved party by different means. Thus, a contract that renders any aforementioned type of agreement as void shall be free to be enforced under the Law of Torts and claim genuine damages.

Law of Torts, notwithstanding with anything in Sec-28 of Indian Contract Act eases the justice served to the common man, not by ensuring actual damages, but through substitute means. Section-28 applies to agreements that wholly or partially restrain this right of the parties. A contract with a clause that no action should be brought up on it is void since it restricts both parties from enforcing their rights under the contract in a court of law.

CONCLUSION:

Taking into consideration different provisions of Sec-28, Indian Contract Act and Law of Torts, we can conclude that even if a particular section renders some specific acts as void, we still have the option to get a concrete solution through the medium of Law of Torts which is all dedicated to consider such cases of ambiguity and provide relief to the aggrieved parties.


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Lawyered Team

Lawyered Team

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