The “positive law” of impossibility in the Indian Contract Act

Abstract

ABSTRACT The law of impossibility contained in Section 56 of the Indian Contract Act, 1872 is a slight oddity in the common law world as it does not make any mention of the parties’ intention. While Indian courts have subordinated it to the intent of the parties, they have also insisted that it is a “positive law” that is unconcerned with the terms of the contract, which have been relegated, at least superficially, to Section 32 of the Indian Contract Act, 1872 that only imperfectly deals with the vast terrain of impossibility. It is argued that the contradictory stance is, in part, the result of an unwarranted importance being attached to theEnglish debates surrounding the juristic bases of the law of frustration. It is also argued that the jurisprudence would benefit from delinking the terms of the contract, specifically the terms that do not constitute conditions precedent, from Section 32.