[Pulkit Khare and Vaidehi Soni are 4th Year B.A., LL.B. (Hons.) students of the National University of Advanced Legal Studies, Kochi] The Supreme Court recently in Mahanagar Telephone Nigam Ltd. (MTNL) v. Tata Communications Ltd. raised a question whether quasi-contractual obligations can be imported into a contract which already stipulates a sum for its breach. The case was brought about to...
Supreme Court’s Balanced Approach to Damages under Contract Law
[Anujay Shrivastava is a 4th Year B.A., LL.B. (Hons.) student at Jindal Global Law School, Sonipat] Section 73 of the Indian Contract Act, 1872 governs the compensation for damages arising from a breach of contract or failure to discharge obligations resembling those created by contract, while section 74 governs the compensation for damages where penalty is stipulated in the contract. In either...
Disgorgement Orders under Indian Securities Law
[The following guest post is contributed by Shubham Janghu, a third year student at Jindal Global Law School with inputs and minor edits by Aditya Swarup, who is an Assistant Professor at Jindal Global Law School.] Introduction Gain-based remedies, though rarely adjudicated in India, are an important aspect of commercial law. The powers of courts to award such remedies arise from statute, for...
US Court Rules on the AIG Rescue
During the global financial crisis that was triggered by subprime mortgages, the US Government engaged in rescuing several banks and financial companies. Through nationalization, the Government even acquired ownership and control over several of them.[1] One such was AIG. In that case however, a large shareholder of AIG mounted a legal challenge to the terms of the Government bail out package...
The Bombay High Court on Mutual Mistake, Damages and Restitution
In Rolta v MIDC, the Bombay High Court has recently considered some important questions relating to the doctrine of mutual mistake, damages for breach of contract and restitution. It is worth examining the judgment closely as it appears to depart from some well-established principles of contract law. The case arose out of a Memorandum of Understanding (‘MoU’) which Rolta and MIDC entered into in...
Double Actionability, Substance and Procedure in Indian Law
The UK Supreme Court (Lord Sumption; Lord Mance concurring) today gave judgment in an important case, Cox v Ergo Versicherung AG (‘Cox’), involving three questions of private international law and some ancillary points relating to the doctrine of mitigation. The Indian courts, faced with similar (even identical) questions, have had to apply old common law rules that have been legislatively...
Remedies against Directors’ Undue Gains: Personal or Proprietary?
What is the appropriate remedy against a director who makes secret profits? Should the remedy be merely a personal one, or should it be a proprietary one? This issue is one of great importance and several jurisdictions have been debating the issue for years now. The rules against conflict and profit are at the core of a director’s duties; and it is essential for a legal system to provide a...
Licensee’s rights and remedies against third parties
Earlier this week, the Court of Appeal revisited the very interesting issue of the rights of a licensee and the remedies available against third parties. Leaving aside the tax-context of the case, the two issues before the Court were (i) whether a licensee can enter into a contract with a third party in relation to a right not conferred on the licensee by the license; and (ii) whether a licensee...
Deliberate Repudiatory Breach and Exemption Clauses – Part II
An earlier post discussed the High Court decision in NetTV, which held that there is a presumption against an exemption clause in a contract also applying to deliberate repudiatory breaches, unless the clause was clearly intended to apply to such breaches. However, in a subsequent decision in June last year, Flaux J severely criticised the line of reasoning adopted in NetTV, considering it...
Deliberate Repudiatory Breach and Exemption Clauses – Part I
Earlier this year, the Court of Appeal granted leave to appeal from a decision of Flaux J in Shared Network Services v Nextiraone, on the basis that the case was a good vehicle to resolve an important question of law. Although there is no certainty as to whether this appeal will be heard, and if so, when, the question of law highlighted by the Court of Appeal is one of great significance for...
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