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Is Common Law a thing of the past? A comparative study of Swiss and Indian Contract Law Procedure
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Dec 17th, 2019

Is Common Law a thing of the past? A comparative study of Swiss and Indian Contract Law Procedure

Research Problem Brief

The Code of Obligations is the primary source of Swiss contract law as a country which follows a civil code tradition. Like most areas of continental civil law, Swiss contract law is based mainly on the tradition of Roman law; however, it is influenced most heavily by the German doctrine of Pandects from the 19th century.[1] Indian contract law by contrast is contained mainly in the Indian Contract Law Act 1872, however as a common law country, this act is interpreted and supplemented by decisions of the national courts of India and therefore one can say that Indian contract law comprises of those laws contained in the Act and the common law alike.

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[2] With the differences between civil code and common law countries becoming increasingly less significant due to the fact that even in common law countries, the majority of litigation is based on code rather than principles of common law.[3] This leaves the consideration of whether the common law tradition in contract law is indeed a thing of the past. The reminiscences of common law tradition in these countries is generally limited to the precedential effect of judicial opinion, and to this extent these countries continue to be classified as being of common law tradition rather than civil code, despite the significant decrease of the incidences of these decisions. This research therefore proposes to undertake a comparative study of the contract law of both Switzerland, as a country of civil code tradition, and of India, a country of common law tradition, to outline the respective contract law procedures in these jurisdictions. The central undertaking contained in this research will be to highlight the differences in these jurisdictions, particularly where these differences are supplemented or formed entirely by common law precedents as laid down by judicial decision making.

The particular ambit of the current research proposes to examine the foundational elements of contract law in Switzerland and India. As contract law generally is not a set of laws per se in terms of specifying precise rights and duties which the law will protect and enforce, but rather a set of limiting principles which apply to agreements subject to which parties to the contract can create their own rights and duties, this research will seek to examine these principles as they are formed in the respective jurisdictions. Topics to be covered by the research include the historical formation of the law, basic elements, general rules, special rules and sources of contention in comparative study (for example, tort-contract interface, restraint of trade contracts and boni mores).

The conclusion of this research will aim to highlight the impact of the common law on contract law in India as compared to that of Switzerland. In doing so it will test the hypothesis that inquires whether common law traditions have an impact in the development and practical functioning of contract law. It is expected that there will be a number of significant contributions with regards to differences between these two jurisdictions where historically, common law has played a significant role in the development of these areas of the law and where these are considered areas of law that are difficult to codify. One such example is the concept of boni mores in Indian law invalidating certain types of contracts such as gambling contracts and restraint of trade agreements (RoT). RoT agreements for example are commonly accepted around the world, however specific to the boni mores of India, these contracts are contrary to public morals. Although this is contained in the Act, this is something which is consistently informed by common law and to this extent one can speculate that the common law indeed does have an impact.

Gap in Current Knowledge

The proposed research seeks to fill two gaps in the current knowledge with regards to contract law. The first is the limited research that has been conducted on the issue of common law jurisdictions globally. In comparative jurisprudence, it is generally taken for granted that certain countries are of common law traditions merely because they have a system of precedent. However, with the increasing amount of codified law, there is very little left that remains of common law tradition. It stands to reason therefore that research into the actual existence of common law traditions in modern jurisdictions which have been so classified is a relevant question of contract law, as it may be found to be a mistaken assumption. Particularly as globalization becomes a pressing concern to have unified principles of contract law applicable across national boundaries, it is a relevant academic inquiry to determine the differences between these systems and possible means of reconciliation. These inquiries become particularly relevant in examining elements of contract such as the tort-contract divide, where tort is primarily a concept contained in common law, however a concept which often differs across international boundaries.

The second gap in the current knowledge is in the form of a comparative study between the particular jurisdictions that form the basis of the proposed research. That is to say that there is no current comparative research on contract law between the jurisdictions of Switzerland and India. As these countries are significantly different in terms of political, social and economic factors, one could argue that this should extend to vast differences in the formation of their legal systems. This therefore positions this research as an interesting inquiry theologically, as well as an important inquiry for the purposes of studying legal development. In terms of the goal of reconciling international jurisdictions, it stands to reason that a comparative study between a developed country and a developing country that represent opposite ends of the socio-economic spectrum, may result in a relevant comparative study that will further the insight into steps needed for standardization in international contract procedures. An example of this type of contract is international building contracts which require very precise procedures as they operate across national boundaries.

Methodology

The primary research methodology proposed for this research is qualitative in nature. It is important for the purposes of any research that the methodology be clearly defined as a means of promoting and understanding the means used to support the central hypothesis of the paper. It is imperative to realise that there is no single way of conducting qualitative research, and what has evolved from the literature is a standard understanding of a variety of methods used. Indeed, authors believe that the outcomes and research methods undertaken rely heavily on a number of subjective factors specific to the research and this in turn affects the research methodology used.[4] These factors include the researchers specific beliefs about the nature of the social world and the ontology thereof, the purpose and goals of the research, the audience of the research, the funding if applicable, the characteristics of the research participants, and the position and environment of the researchers themselves in relation to the research undertaken. It is further important to be aware of the philosophical debates and methodological developments with regards to the research when undertaking them. This speaks to the reliability of the research itself as awareness of these methods and debates will keep the research abreast of development and therefore serve as a convincing factor when contemplating the validity and reliability thereof.

The following definition of qualitative research is offered:

“Qualitative Research is a situated activity that locates the observer in the world. It consists of a set of interpretive, material practices that makes the world visible. These practices turn the world into a series of representations including fieldnotes, interviews, recordings and memos to self. At this level Qualitative research involves an interpretive, naturalistic approach to the world. This means that qualitative researchers study things in their natural settings, attempting to make sense of, or to interpret phenomena in terms of the meaning people bring to it.”[5]

Methodological Considerations

A central assertion about qualitative research relates to the observable nature of the research generally. This relates directly to the research adopting a positivist standpoint as opposed to interpretivism for example. Positivism is based on the assumption that only that which is observable presents an abstract representation as opposed to presenting abstract ideas as foundation for research based findings.

This includes consideration of the relevant ontological issues that are present in any research. These concerns are based around what there is to know about the world and whether these social realities exist independently of human conceptions and interpretations. This extends to concern over whether it is a shared, common social reality or just a multiple-context specific reality. In the case of the latter, one can see that there would be concerns over the reliability of the research as the relevant ontological concerns would not have been considered adequately.

Epistemology is centrally concerned with the ways of knowing and learning about the social world, as the central concern of the research. Therefore, it focuses on asking questions such as the validity of the methods of knowing things about social reality and what the basis of this knowledge is. With regards to the epistemology there are a number of central concerns. One such concern relates to the relationship between the research and the researcher. In order for the research to be valid, the researcher is expected to have an objective viewpoint on the research topic, however this in itself is an impossible standard as there will always be subjective considerations that form the opinion of the researcher which in itself forms the basis of interpretation of any of the data presented in the research paper. This apparent conflict is generally resolved through the use of the assumption of research neutrality where it is assumed that the researcher can never be value-free however in order to mitigate this, full transparency with regards to their assumptions and research propositions. In this way therefore, the inherent prejudices leading to the assumptions will be acknowledged in the research and consequently will not necessarily compromise the validity thereof.

Timeline
Year 1
CommencementEnrolment & appointment of provisional supervisor
January 2013Confirm topic selection with supervisor
April 2013Confirmation and submission of first annual plan
July 2013Complete thesis proposal review (including 30 minute presentation)

Submit 1st research progress report and updated research plan.
Year 2
July 2014Complete research
November 2014Complete introduction section with plan for the remainder of the research.
December 2014Submit 2nd research progress report and annual plan.
Year 3
July 2015Complete remainder of writing.
September 2015Complete editing
2 months prior to submissionNotification of intention to submit

Bibliography

Bucher, E. (2002) Law of Contracts in Dessemontet, F. & Ansay, T. (eds) ‘Introduction to Swiss Law’ (3ed) London: Kluwer

Gulshan, S. (2008) Business Law including Company Law. London: New Age International

Hadfield, G. (2006) The Quality of Law in Civil Code and Common Law Regimes: Judicial Incentives, Legal Human Capital and the Evolution of Law. [online] Available on: http://www.law.yale.edu/documents/pdf/the_quality_of_law_in_civil_code.pdf [Accessed 24 December 2012]

Snape, D. & Spencer, L. (2005) “The Foundations of Qualitative Research” in Ritchie, J. & Lewis J. Qualitative Research Practice: A Guide for Social Science Students and Researchers London: SAGE Publishing

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