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Prodyut Banerjee (Advocate (Corporate Lawyer))     16 July 2015

Commercial contract

In a domestic contract in India where both the parties are in India and the operation is wholly in India, can the parties insert a clause that a foreign law (say Data protection law of UK) shall be complied by both the parties. What is the legal validity of such clause? Members view solicited.



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 4 Replies

Anand Bali Adv. (Advocate Solicitor & Consultant)     18 July 2015

There is no such legal validity of such clause if the business of the contrat is happening in India with an Indian Jurisdiction.

In India only those laws can be enforced to the parties which are prevailing here with it's jurisdictional approach. So these agreements will remaind only agreements between the parties and will not become a contract between the parties as its terms and conditions can not be enforced through Indian Juditial systems as these are foreign laws and not Indian which can not be enfored legally here.

Please remember every contract is an agreement but every agreement is not a contract; as only contracts can be enforcable by law.

S K KARNjhc (Legal Adviser)     21 July 2015

Good, no suggestion required

JustAdvisor (IT)     19 April 2016

I have to submit that the Data Protection Law of UK will form a part of your contract and every section will undergo the test of section 10 of Indian Contract Act. If whatever passes section 10 is severable then it will be upheld else the entire law will fail.

Again, radical thinking - there is no precedent to my knowledge :)

Anand Bali Adv. (Advocate Solicitor & Consultant)     19 April 2016

@ Mr Jayesh Gokhale, The theory on which the Quisi-Contractual obligations are based is not yet finally settled however these should be rational on grounds of Natural Justice and Considering the Law of equity.Loard Mansfield who is considered to be the real founder of such obligations (in Contract), explains them on Principles that Law and as well as Justice should try to prevent "unjustenrichment" i.e. enrichment on the cost of the other's sufferings. The identifications of quisi contracts (Sec 10 Indian Contract Act) with implied contracts restricted the scope of relief which would have been possible without any such hinderence under principles of Jurisprudence "Natural Justice and Equity".

 

 


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