Yamini Rajora, National Law University Jodhpur
Editor’s Note: Statutory transactions are contracts under compulsion of law whereby parties are mandated by executive orders or legal regulations to enter into either contractual relations or contract–like relations. Therefore, it would not be a sale of goods as the consensual element which forms the basis of contract is absent. However, lately there has been a characterization of statutory transactions as consensual contractual arrangements. This reflects the growth of a novel jurisprudence of contract by law distinct from the ordinary contracts by consent of parties, as understood throughout the legal history.
Statutory transactions are those transactions in which supply of goods is done by virtue of a statutory obligation. Statutory transaction would not be a sale of goods as the consensual element which forms the basis of contract is absent.
In case of statutory transaction, this transaction is not necessarily a consensual transaction the limitations on the normal rights of dealers and consumers to supply and obtain the goods, the obligations imposed on the parties and the penalties prescribed by the control order converts the contract of sale in to statutory transaction thus leaving no scope for parties to make terms and conditions for themselves and thus eradicating the principle of contractual liberty.
It has been held in many English cases that supply of goods by the virtue of a statutory obligation, would not be a sale of such goods as the consensual element which forms the basis of the contract is absent.
The freedom to choose contractual partner in such transactions is nothing but a very thin slice of the cake of freedom of contract which in a regulated way is still available to the parties in other contractual matters. The fundamental nature of contract is not altered till a bare minimum of contractual freedom is available which is especially true in context of socialist economies with greater amount of state regulation accompanied by constant erosion of the absolute nature of freedom of contract.
Cases of compulsory acquisition of property by the state stand on a different footing since there is no question in such cases neither of offer and acceptance nor of consent, either express or implied. Though compulsory acquisition of property would exclude the element of mutual assent which is vital to a sale, so long as mutual assent, express or implied, is not totally excluded the transaction will amount to sale.
A transaction which is effected in compliance with the obligatory terms of a statue may nevertheless be a sale in eyes of law.
Statutory transactions are those transactions in which supply of goods is done by virtue of a statutory obligation. Statutory transaction would not be a sale of goods as the consensual element which forms the basis of contract is absent.
Statutory transactions are contracts under compulsion of law whereby parties are mandated by executive orders or legal regulations to enter into either contractual relations or contract–like relations.
According to Potheir, the contract of sale is “consensual, bilateral and commutative”[i]. So the first essential which we get from the definition given by Potheir is that the sale must be consensual that means parties must give their free consent because forced purchase and procurement is acquisition.[ii] In order to see that whether there was an agreement or consensuality between the parties, regard must be had to their conduct at or about when the goods changed hands.
India, as a socialist economy, has evolved the novel jurisprudence of ‘contract by law’ wherein the free consent of the parties is much more anterior to the contract itself. Forced sales have thus been judicially fitted into the traditional criteria of ‘contract sovereignty’ by redefining the boundaries of consent and freedom of contract.[iii] This has served twin purposes of augmenting the coffers of State through taxation of such forced transactions under the Sales Tax legislations and providing the parties with a wider net of protection through buyer’s and seller’s right and remedies under the Sale of Goods Act, 1930.
Why Statutory Transactions are imposed?
Statutory transaction are imposed when essential goods are in short supply or at the time of any social or other disturbance takes place which renders smooth supply of a commodity difficult if not impossible so government takes the initiative of directing those who are in possession of commodity to supply the commodity at a price which is decided by government.[iv] Various types of orders are issued under the essential commodities act 1955 with a view to making the goods available to the consumer at a fair price. Such orders may lay down the requirements of holding a license for dealing in the commodity and getting a permit for obtaining the commodity.[v] The permit holder can obtain the supply of the essential goods, to the extent of quantity for which permit is granted, from the named dealer at a controlled price.
Statutory transactions and contract of sale
Section 4 of the Sale of Goods Act, 1930 defines contract of sale as,
“A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price.”
The above definition lays down four essentials which are:
- There must be two parties – There must be at least two parties, i.e. one buyer and the other seller. A person cannot buy his own goods. There is exemption in the case of a part owner. For the purpose of sale of partnership property, partners are not regarded as separate persons. They cannot be both seller and buyer. But a partner may sell goods to the firm or buy goods from the firm. However, a part owner can sell his ownership to another part owner.
- Subject matter of sale must be goods – The subject matter of the contract must be goods. The expression “goods” is thus defined in section 2(7) of the Act.
Goods means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.
- Transfer of property in the goods – It is the ownership that is transferred in a Contract of sale. The general property is transferred from seller to the buyer in a contract of sale. When the goods are pledged, it is only the special property which is transferred i.e., possession of the goods is transferred to the pledgee while the ownership rights remain with the pledger.
- Consideration in Price – Consideration in a contract of sale has necessarily to be money. Thus, if for instance, goods are offered as consideration for goods, it will not amount to sale, but it will be called barter. Similarly, in case there is no consideration, it amounts to gift and not sale. However the consideration may be partly in money and partly in goods.
A sale is necessarily a consensual transaction and if the parties have no volition or option to bargain, there can be no sale[vi], the limitations on the normal rights of dealers and consumers to supply and obtain the goods, the obligations imposed on the parties and the penalties prescribed by the control order did militate against the position that eventually the parties must be deemed to have completed the transaction under an agreement by which one party bound itself to supply the stated quantity of goods to the other at a price not higher than the notified price and the other party consented to accept goods on the terms and conditions mentioned in the permit or the order of in its favor by the concerned authority.
So in instances like this it is contract of sale because parties are making contract by their own will and there is no forced consent but it is a free consent so it is a contract of sale.
A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of the law of contract.[vii] The fact that one of the parties to the contract is a statutory body or a public body will not by itself affect the principles to be applied. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies like private parties, have power to contract or deal with property. Such activities may not raise any issue of public law.
The disputes regarding the interpretation of terms and conditions of a statutory contract are to be referred to a Civil Court or in arbitration if such is provided in the contract.
A party to a statutory contract for the sale of goods is bound to discharge his obligations in terms of the provisions of the Act, Rules or conditions of license as they stood. He is also entitled to enforce his rights. No executive order can be issued to confer a new liability upon the licensee particularly when grant of license for each year would result in separate contract which may not only provide for a different price but also different terms and conditions as well as the mode and manner in which the rights of the parties thereto are required to be exercised and/or the obligations are to be discharged; more so when the one contracting party has no say therein, it is well-settled that by reason of an executive act a liability cannot be created with retrospective effect.[viii] The above rule applies in a statutory contract. The mode and manner having been fixed, the statutory authority must follow the procedure laid down.[ix]
Statutory Transactions and Sale of Goods Act, 1930
Statutory transactions directly place a danger on the principle of ‘contractual liberty’ which has been given in Section 62 of the Sale of Goods Act, 1930. The provision is merely an application of the general maxim “Expressam facit cessare tacitum” which means that “the express mention of one thing implies the exclusion of another” thus sanctifying the principle of contractual liberty which allows parties to the contract to add any number of conditions in their agreement.
Another legal maxim from which Section 62 draws its legitimacy is “Modus et convenitio vincunt legem” which means that “the form of agreement and the convention of parties overrule the law”. This maxim also strengthens the principle of contractual liberty by approving the principle of parties’ autonomy in making laws for themselves.
Statutory transaction is not in accordance with the principle of contractual liberty rather it is an antithesis of contractual liberty because one important factor of contract of sale is that parties must be free to set any number of terms and conditions for themselves but in statutory transaction this is not available to the parties.
Contractual Liberty in Statutory Transactions
It is not true that every transaction involving a transfer of property and a payment constitutes a sale. A sale is always a consensual transaction; even when the word sale is used in narrower sense of pure conveyance, there is necessarily an antecedent or contemporous agreement to sell.
The Indian Contract Act, 1872 predicates free consent as the basis of a contract. Free consent as defined in Section 14 means that consent is free when it is not caused by coercion, undue influence, fraud, misrepresentation or mistake as defined in Sections 15 to 18. Since compulsion of law cannot be coercion within meaning of section so the consent to the agreement entered into was free within the meaning of section. Secondly, in public interest, persons exercising certain callings or having monopoly or near monopoly powers should sometimes be charged with the duty to serve the public.[x]
There must be mutual assent between the contracting parties, in the objective sense in which this expression is always understood in the law of contract, to all the elements which make up a sale.[xi]
The seller must agree to transfer the property and the buyer must take it. There must be an agreement to do so in return for money which is paid and received for the price of goods. Where the consent of the parties does not extend or does not exist at all, there is no sale and the Sale of Goods Act shall not be applicable to such transactions.[xii]
Judicial favour of public policy as a means for interfering with objectionable contracts is cogent evidence of doubt as to how far contractual freedom should be sanctified.[xiii]
One of the most distinguishing features of statutory transaction is the absence of bargain element along with no option but to conform to the terms in the contract under the statute or the order. In case of statutory transaction, this transaction is not necessarily a consensual transaction the limitations on the normal rights of dealers and consumers to supply and obtain the goods, the obligations imposed on the parties and the penalties prescribed by the control order converts the contract of sale in to statutory transaction thus leaving no scope for parties to make terms and conditions for themselves and thus eradicating the principle of contractual liberty.[xiv]
Test to determine the Contractual Liberty in Statutory Transactions
Whether statutory transactions amount to a sale or not in the eyes of law or not, depends on that whether the liberty to contract in relation to fundamentals of the transaction is completely excluded by the provision of the statute or order.[xv] Therefore, the question to be determined in the cases of statutory transaction is that whether freedom of consent or consensual liberty was available to the contracting party other than the contracting party under the statute or order.
In order to see whether there was any agreement or consensuality between parties, regard must be had to their conduct at or about when the goods changed hands. Since it is not obligatory on a trader to deal in such essential commodity nor on any one to acquire it, the primary fact is that the decision of the trader to deal in the essential commodity strictly in the terms of the control orders is volitional and the consumer too on his own volition decides to obtain the commodity on the terms of the permit or the order of allotment issued in his favor. The parties enter into such transactions with their free consent.
Construction of a contract in Statutory Transaction
Insistence on strict construction instead of questioning whether, because of the inequality of the parties, a bargain can be said to exist can never lead to the enlightenment of judicial reasoning in the latter respect. Such a practice has the added disadvantage that by taking interpretation beyond its real possibilities it embarrasses attempts at true construction[xvi] of contracts concluded at arm’s length between commercial parties of equal standing and makes their drafting an impossible task.
Construction at its best is a temporary expedient as it still leaves the powerful offeror the opportunity of redrafting his contract so as to achieve the desired result.[xvii] By a process of strict construction against the offeror, such clauses are excluded where the document did not appear to be contractual in nature[xviii], where the offeree’s attention was not adequately drawn to the conditions[xix], or where notice of them was given after the contract was concluded.[xx]
The Government’s object in contracting is to procure its requirements as cheaply as possible, consistently with securing the desired quality of goods or service. The Government’s interest in cheap procurement has to be reconciled with the contractor’s interest in profit, and also with the need to keep in existence a sufficient number of firms with the willingness and capacity to do the Government’s work.[xxi] The delicate balance that must be struck between the provision of reasonable profits to contractors and the limitation of cost to the Government calls for the use of different forms of contract that are appropriate to different contracting situations.[xxii]
Most comprehensive use of government contracts is to put some of the policies of the government policies into effect-to exert, in other words, social control over certain aspects of the life of the citizens.[xxiii] Contract has shown a tendency to become more and more standardized, even compulsory, thus falling under the realm of statutory transactions.[xxiv]
There is no question that the Government contract, with rare exceptions, is a contract of adhesion, that is, a standard form, prepared by one party and required of the other, designed to fit a wide variety of situations by the filling in of appropriate blanks or the annexing of detailed technical specifications, and with very little opportunity for variation.[xxv] Such contracts of adhesions have become common in private dealings. The contracts with the Government offer very little scope for variation or change in terms of the contract as the party other than the Government is compelled to enter into the contract under a statute or an order. The contract is one that falls under the purview of statutory transactions.
A person who seeks to contract with the Government must be deemed to be fully aware of the statutory requirements as to the form in which the contract is made. Until the contract is entered into as per the condition and in accordance with law, the purpose does not acquire any right or subsequent refusal to enter into contract or cancellation of highest bid cannot be faulted when edged with public element unless it is discriminatory or arbitrary.[xxvi] It is therefore, held, that contract is not in the form required and is hence not enforceable.
Contractual liberty in Government Contracts
In government contracts, the outward form is that of contract; the substance, however, is not free bargaining, but submission to a process of private legislation.[xxvii] While in, and in contract law, complete freedom remains in that the other party has the alternative of not entering into the agreement, in practical effect that choice turns out to be no choice at all.
The weaker party, with a need for the goods or services, cannot go to another source. Either he is faced with a monopoly (as in a public utility), or he finds that all competitors use substantially the same clauses and do business in substantially the same way. The act of submission in the relationship of power finds little recognition in contract law, which is still based on notions of equality of bargaining position.[xxviii]
A businessman seeking Government contracts has only an illusory freedom of choice. To the extent that his economic health depends on receiving either Government contracts or subcontracts from other Government contractors, he has no feasible alternative but to submit to the attachment of conditions having no relation to the buying and selling function.[xxix]
Government Contracts for the provision of goods
Government contracts are complicated for a very simple reason: the subject matter with which they deal is inherently complicated. The Government buys every product that the economy produces. Directly or indirectly the Government contracts or subcontracts with almost every major concern in the country, and with a very great number of small business firms.
The core of the government’s contracting activity is the purchase of goods and services. The term ‘procurement’ is often used to describe this activity but it is usually avoided because in some contexts it implies a distinction between simple purchases and more complex contracting-out arrangements in which in-house services are put to tender.[xxx]
Statutory Transactions under Indian Law and English Law– A Comparative Analysis
The judicial opinion regarding contracts of sale under compulsion of law has been crystallized in a spate of closely followed Supreme Court judgments from 1961 to 1988. A brief introduction to the factual scenarios involved in the major decisions and the judicial determination in such cases has been outlined below. A sharp appraisal of some basic concepts and ideas will help in scrutinizing the validity of the various reasons given by the Supreme Court for characterizing statutory transactions as consensual sales.
State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd.[xxxi]
Various orders were issued under the Essential Commodities Act, 1955 to make the goods available to the consumers at a fair price in event of shortage in supply. The vexed question that arose in this case was that whether a transaction under such an order for controlled price amounts to a sale in the language of the law and the controversy whether what is conveniently though loosely called, a ‘Compulsory sale’ is eligible to sales tax.
It was observed that in order to whether there was any agreement or consensuality between the parties, regard must be had to their conduct at or when the goods changed hands. The parties enter into such transactions with their free consent. When the allottee present his permit to the dealer, he signifies his willingness to obtain the commodity from the dealer on the terms stated in the permit. And when upon the presentation of the permit, the dealer acts upon it, he impliedly agrees to supply the commodity to the allottee on the terms by which he has voluntarily bound himself to trade in the community. His conduct also reflects his consent. Thus, though both the parties are bound to comply with the legal requirements governing the transaction, they agree as between themselves to enter into the transaction on statutory terms, one agreeing to supply the commodity to the other on those terms and the other agreeing to accept it from him on the very terms. It is therefore not correct to say that the transactions between the dealers and the allottees are not consensual.
New India Sugar Mills v. Commissioner of Sales Tax, Bihar[xxxii]
The Sugar Products Control Order 1946 prohibited the producers of sugar from disposing of or agreeing to dispose of or to make delivery to anyone except to or through a recognised dealer. Under this order, every dealer was required to comply with directions regarding production, sales, stock or distribution as may be given from time to time by the controller. The plaintiffs in the present case that is the New India Sugar Mills, having supplied sugar under the said order to the State of Madras and Bihar attempted to tax the transaction as a sale.
The majority judgement was that the contract of sale postulated the exercise to volition on the part of the contracting parties, and there was no such volition in complying with the orders passed by the controller.
The majority, through Justice Shah, held that on basis of definition of sale in Section 4 of Sale of Goods Act, 1930, a contract for sale between the parties is a pre-requisite to a sale. The execution of binding order by the Mills provided no opportunity of any offer and acceptance between the dealers and the buyers. The Controller was not acting as agent of the sellers and the buyers so as to communicate their offer and acceptance to each other and hence no contract ever existed so as to constitute sale. Justice Hidayatullah, in a brave dissent, held that:
“Consent under the law of contract need not be express it can be implied. There are cases in which a sale takes place by the operation of law rather than by mutual agreement express or implied.”
He observed that a sale under compulsion is still a sale. Sales may often take place without volition on part of the parties and mutuality is not essential for a sale to take place.
Salar Jung Mills Ltd. v. State of Mysore[xxxiii]
This judgement tried to breathe in the concept of freedom of contract to justify the contractual underpinnings of statutory sales.
In this case, the levy of tax on purchase of sugarcane was challenged on the ground that on account of the Central and State Control Orders applicable to the transaction, there was no mutual assent between the purchasers and the growers of sugarcane in regard to the transaction and therefore, they did not amount to sales.
It was held that it was established that statutory orders regulating the supply and distribution of goods by and between the parties under the Control Orders d not absolutely impinge on freedom to enter into contract. Legislative measures or statutory provisions regulating the price, delivery and supply restricting areas for transactions are all within the realm of planning economic needs, ensuring production and distribution of essential commodities and basic necessities of the commodity.
A factory could reject the goods after inspection which indicated not only freedom in the formation but also in the performance of the contract. These features indicated with unerring accuracy that parties entered into an agreement with mutual assent and with volition for transfer of goods in consideration of price. The transaction under the preset case was, therefore, held to be a sale within the meaning of the definition under Sale of Goods Act, 1930.
Coffee Board, Karanataka, Bangalore v. Commissioner of Commercial Taxes[xxxiv]
This case added a new dimension to the ongoing debate about the freedom of contract and law’s power to regulate it.
The main issue that arose in this case was that under S. 25 of the Coffee Act, 1942, coffee growers were required to sell all the coffee grown by them only to the Coffee Board. The Supreme Court held that this was not compulsory acquisition of the coffee grower but a sale since it included all the four essential elements of a sale namely:
- Parties competent to contract;
- Mutual consent although restricted;
- Transfer of property in the goods;
- Payment of price although deferred.
The court also observed that offer and acceptance need not always be in an elementary form, nor does the law the law of contract of sale of goods require that consent to a contract must be expressed. Offer and acceptance can be spelt out from the conduct of the parties which cover not only their acts but omissions as well. The limitations imposed by the Control Oder on the normal rights of the dealers and consumers to supply and obtain the goods, the obligations imposed on the parties and the penalties prescribed by the order do not militate against the position that eventually, the parties must be deemed to have completed the transaction under an agreement by which one party binds itself to supply the stated quantity of goods to the other at a price not higher than the notified price and the other party consents to accept the goods on the terms and conditions mentioned in the permit or in the order of allotment issued in its favour by the concerned authority.
The cases discussed above show that statutory transaction under Indian Law are considered to be a sale as the parties to the contract are aware of the terms and conditions of the agreement and they purport to enter into such agreements with their own will. Therefore, it cannot be said that there was absence of the consensual element in such transactions. Only after full knowledge of the statutory terms of the contract, do the parties decide to accept the contract or not.
Where goods are acquired pursuant to an authority conferred by a statute, there is no sale of the goods, even though compensation is payable and its amount may be fixed by negotiation between the parties.[xxxv] The expression “compulsory purchase” commonly used for contracts under such transactions is misleading. There is no contractual obligation on which an action may be brought against the authority for failure to make the supply.
Read v. Croydon Corporation[xxxvi]
The facts in this case were that the defendant corporation owned water wells to supply water to the residents. The plaintiff claimed damages for breach of duty by the defendant in supplying clean water due to which his daughter fell ill.
It was held that where one person is by statute bound to supply a commodity and the other is entitled to receive it, there is no contractual obligation between the two persons, although the rights and obligations arising out of a statutory provision may be similar to or identical with, those arising out of ordinary contract.[xxxvii] A contract under a statute or an order is not considered to be a sale as the consensual element is absent. The defendants in the present case were held guilty of a breach of statutory duty.
Willmore v. South Eastern Electricity Board[xxxviii]
The plaintiffs in the present case started in business as poultry farmers rearing chicks by infra-red heat and the defendant company agreed to supply electricity for the same. However, the defendant failed to do so and the plaintiffs were ruined financially.
It was held that representations about the proper supply of electricity were not made with contractual intent and there existed no contract at all between the two parties. This case drew a distinction between the statutory undertakers performing their statutory duties and between those acting as contractors.[xxxix]
Pfizer Corporation v. Ministry of Health[xl]
It was held in this case that the supply of drugs or appliances to a member of the public under the National Health Service Scheme, whether by a hospital or a pharmacist was not a sale although a prescription charge was paid in return.
Lord Reid said in this case that –
“There is no sale in this case. Sale is a consensual contract requiring agreement, express or implied. In the present case, there appears to be that there is no need for any agreement. The patient has a statutory right to demand the drug on payment. The hospital has a statutory right to supply such on payment. And if the prescription is presented to a chemist, then he appears to be bound by the contract with the appropriate authority to supply the drug on receipt of such payment. There is no need for an agreement between the patient and either the hospital or the chemist, and there is certainly no room for bargaining.”
Appleby v. Sleep[xli]
There is no possible cause in action in contract as there is deemed to be ‘no contract between patients and the health care profession.’ This was seen in the present case which established that ‘no consideration in return for the services they receive’, meaning there is no consideration on the patient’s behalf to suffice a contractual relationship.[xlii]
In the view of the Indian and English case laws discussed above, it can be seen that while statutory transactions are considered to be sale under Indian Law, the same is not true for English law. Under English Law, such transactions do not fall under the realm of sale transactions as the consensual element is absent in them. The view taken in England is that there is no freedom of consent available to the parties entering into contracts under a statute or an order.
It can very well be thought, in the overzealousness to defend freedom of contract that statutory transactions are coupled with penalties to be imposed on parties in case of non-compliance and the penalties are often in nature of forfeiture of their property. This sanction can thus constitute the threat to detain property to the prejudice of the party concerned with an intention of causing him to enter into an agreement. But such a view if taken will be highly misplaced and contrary to all notions of commonsense.
Statutory transactions have a nature different from ordinary contracts and can be more appropriately described as ‘contract by law.’ A part of consent in such cases is not individualized separately for each contract, which may conveniently be referred as ‘Consent anterior to contract’, while a part of consent is given while framing such an agreement, implied or express, under command of law; which may conveniently be called ‘Consent concurrent with contract’.
A very pertinent question to ask is if statutory transactions are not considered to be sales, then what is the legal nature of the transactions taking preferably the case of New India Sugar Mills which militates against the view taken here. In that case, it was not a compulsory acquisition of sugar and the court did not describe it to be so. The mills did not make a gift of sugar as price consideration was given by the states. Nor was the transaction a barter or exchange. Except these there is only one legal transaction called ‘sale’ in which property in goods belonging to a person A passes to another person B for a price. Benjamin on Sale of Goods also describes sale as transfer of the ownership of a thing from one person to another for a money price.
The issue whether the statutory transactions are sale is pertinent for the purpose of taxing them under the Sales Tax legislations and also for determining the mutual obligation of the buyer and sellers which apply only when the transaction is a sale. The Sale of Goods Act, 1930 will apply to such transaction if they are contractual and the parties can claim the remedies provided under the Act.
In conclusion, it is submitted that a transaction where one of the parties is compelled by law to transfer property in goods to the other party is still a sale, contractual in nature and hence governed by the Sale of Goods Act, 1930. The compulsion is in form of regulation and statutory sales retain their basic character as ‘sales’ though concluded in a narrow bargaining field available to the parties. The characterization of statutory transactions as consensual contractual arrangements reflects the growth of a novel jurisprudence of contract by law distinct from the ordinary contracts by consent of parties, as understood throughout the legal history.
Edited by Kanchi Kaushik
[i] Robert Joseph Pothier, A Treatise on the Law of Obligations, Or Contracts, Vol. 1, p. 81
[ii] Joseph M. Perillo, Robert J. Pothier’s Influence on the Common Law of Contract, available at http://ssrn.com/abstract=610601; accessed on 30/03/2014
[iii] Raghav Sharma, How Consensual is Compulsion: Growth of Contract by Law in Socialist India, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1086876; accessed on 29/03/2014
[iv] Sandra J. Levin, Examining Restraints on Freedom to Contract as an Approach to Purchaser Dissatisfaction in the Computer Industry, 74 California Law Review 2101 (1986)
[v] Hyundai Heavy Industries Co Ltd v. Papadopoulos,  1 WLR 1129
[vi] State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd., AIR 1958 SC 560
[vii] R. S. Tripathi and P. N. Kumar, Sanjiva Row’s Commentary on Law relating to the Contract Act, 1872 and Tenders, 2435 (New Delhi: Delhi Law House, 10th ed., 2006)
[viii] M. C. Bhandari, Law of Contract & Tenders, 323 (New Delhi: Ashoka Law House, 2011)
[ix] Government of Maharashtra v. Deokar’s Distillery, AIR 2003 SC 1216
[x] Andhra Sugars Ltd. v. State of Andhra Pradesh, AIR 1968 SC 599
[xi] Benjamin’s Sale of Goods, 53, (London: Sweet and Maxwell, 6th ed., 2002)
[xii] Snook v. London & West Riding Investments Ltd.,  2 QB 537
[xiii] Nicholas S. Wilson, Freedom Of Contract And Adhesion Contract, 14 International and Comparative Law Quarterly 172 (1965) available at
http://heinonline.org/HOL/Page?handle=hein.journals/incolq14&div=10&g_sent=1&collection=journals#182; accessed on 29/03/2014
[xiv] Nicholas S. Wilson, Freedom Of Contract And Adhesion Contract, 14 International and Comparative Law Quarterly 172 (1965) citing Powell, A Study of the Effects and Limits of Exemption Clauses in Standardised Contracts under English and American Law, 37 (unpublished paper in the Yale Law School Library)
[xv] Pollock and Mulla, The Sale of Goods Act, 65 (New Delhi: Lexis Nexis Butterworths Wadhwa, 8th ed., 2011)
[xvi] Wright, Opposition of the Law to Business Usages, 26 Colorado Law Review 917 (1926)
[xvii] L’Estrange v. Graucob,  2 KB 394 (C.A.)
[xviii] Chapelton v. Barry U.D.C.,  1 KB 532 (C.A.)
[xix] Richardson v. Rowntree,  A.C. 217 (H.L.)
[xx] Gower, Exemption Clauses-Contractual and Tortious Liability, 17 Michigan Law Review 155 (1954)
[xxi] C. C. Turpin, Government Contracts: A Study of Methods of Contracting, 31 Modern Law Review 241 available at http://www.jstor.org/stable/1092502; accessed on 28/03/2014
[xxii] Manfred Rehbinder, Status, Contract and the Welfare State, 23 Stanford Law Review 941 (1971)
[xxiii] Arthur S. Miller, Government Contracts And Social Control: A Preliminary Inquiry, 41 Virginia Law Review 27 (1955)
[xxiv] Isaacs, The Standardizing of Contracts, 27 Yale Law Journal 34 (1917)
[xxv] Robert S. Pasley, The Interpretation Of Government Contracts: A Plea For Better Understanding, 25 Fordham Law Review 211 (1956) available at
http://heinonline.org/HOL/Page?handle=hein.journals/valr43&div=73&g_sent=1&collection=journals#861, accessed on 29/03/2014
[xxvi] Chairman-cum-Managing Director, Tamil Nadu Tea Plantation Corporation Limited, Conoor v. M/s. Srinivasa Timbers, Salem, AIR 1999 Mad. 111; K. P. Chowdhary v. State of M. P., AIR 1967 SC 203
[xxvii] Supra note 15
[xxviii] Lenhoff, The Scope of Compulsory Contracts Proper, 43 Colorado Law Review 586 (1943)
[xxix] A. C. L. Davies, The Public Law of Government Contracts, 4 (London: Oxford University Press, 2008)
[xxx] Michael Furmston, Law of Contract 18 (14th ed., 2003)
[xxxi] State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd., AIR 1958 SC 560
[xxxii] New India Sugar Mills v. Commissioner of Sales Tax, Bihar, AIR 1963 SC 1207
[xxxiii] Salar Jung Mills Ltd. v. State of Mysore, AIR 1972 SC 87
[xxxiv] Coffee Board, Karanataka, Bangalore v. Commissioner of Commercial Taxes, AIR 1988 SC 1487
[xxxv] Minister of Finance v. Kicking Horse Forest Products Ltd., (1975) 57 DLR (3d) 220
[xxxvi] Read v. Croydon Corporation,  4 All ER 631
[xxxvii] M. P. Furmston, Sale and Supply of Goods, p. 9
[xxxviii] Willmore v. South Eastern Electricity Board, (1957) 2 Lloyd’s Rep 375
[xxxix] David Chappell, Parris’s Standard Form of Building Contract: JCT 98, p. 133
[xl] Pfizer Corporation v. Ministry of Health,  AC 512
[xli] Appleby v. Sleep,  2 All ER 265
[xlii] Margaret Brazier, Medicine, Patients and the Law: Revised and Updated Fifth Edition, p. 278