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Title: De-inventing the wheel: Liquidated damages, penalties and the Indian contract act, 1872
Authors: Swaminathan, Shivprasad
Keywords: Indian Contract Act, 1872
Section 74
Liquidated damages
Issue Date: 10-May-2018
Publisher: The Chinese Journal of Comparative Law
Citation: Swaminathan, S. (2018). De-inventing the wheel: Liquidated damages, penalties and the Indian contract act, 1872. The Chinese Journal of Comparative Law, 6(1), 103–127.
Abstract: The article hypothesizes that much of this is attributable to an ambiguity unwittingly introduced by the—universally overlooked—1899 amendment to section 74, the chief architect of which was the ace draftsman and treatise writer Mackenzie Chalmers. The amendment had meant to ‘slightly extend’ section 74 so as to cover some hitherto unregulated cases—namely, increased interest stipulations, acceleration clauses, and payments in specie—but did so by using the poorly chosen phrase ‘or…any other stipulation by way of penalty’ to convey this extension. This drafting slip-up was to become the Trojan horse that let in the English law’s notion of ‘penalty’ and along with it, came tethered, the notion of ‘liquidated damages’.
Appears in Collections:JGU Research Publications

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