I invite reference to the  Report discussing the observations of the Supreme Court in the Civil Appeal No 179 of 2017, Nabha Power Limited  Vs  Punjab State Power Corporation Ltd.

The judgement has discussed several aspects of contracts which is very important for the community of web users and E Commerce to note. Naavi.org has discussed this on different occasions including the previous occasion when we discussed the Shapoorji Pallonji e-tender issue

In particular, there is a clear opinion on the “Express Terms of a Contract” and the “Implied Terms of a Contract” which are important in interpreting the online web contracts which have become ubiquitous.

The judgement refers to the principles to be considered when there is an express contract along with which the implied terms such as

  1. What the parties have expressed in the contract;
  2. An implied term is not to be added because the Court thinks it would have been reasonable to have inserted it in the contract.
  3. A term can only be implied if it is necessary in the business sense to give efficacy to the contract;

It was also observed that ” danger lies, however, in detaching the phrase “necessary to give business efficacy” from the basic process of construction of the instrument.”

Finally the  Supreme Court  arrived at a 5 condition test indicating when “Implied terms” may be taken note of over and above the “Express Terms” in a commercial contract. The five principles are,

  1. Interpretation should be reasonable and equitable
  2. Necessary to give business efficacy to the contract
  3. Meet the officious Bystander Test *
  4. Capable of clear expression
  5. Must not contradict any express terms of the contract

(Officacious Bystander Test: A suggested approach  to imagine a nosey, officious bystander walking past two contracting parties and asking them whether they would want to put some express term into the agreement. If the parties would instantly retort that such a term is “of course” already mutually part of the agreement then it is apt for implication)

However, The explicit terms of a contract are always the final word with regards to the intention of the parties. The multi-clause contract inter se the parties has, thus, to be understood and interpreted in a manner that any view, on a particular clause of the contract, should not do violence to another part of the contract.

The Court went on to conclude

“We may, however, in the end, extend a word of caution. It should certainly not be an endeavour of commercial courts to look to implied terms of contract. In the current day and age, making of contracts is a matter of high technical expertise with legal brains from all sides involved in the process of drafting a contract. It is even preceded by opportunities of seeking clarifications and doubts so that the parties know what they are getting into.

Thus, normally a contract should be read as it reads, as per its express terms.

The implied terms is a concept,which is necessitated only when the Penta-test referred to aforesaid comes into play. There has to be a strict necessity for it. In the present case, we have really only read the contract in the manner it reads.”

In the above judgement there was an express contract and the dispute was on the interpretation of some of the terms of contract where the “implied” interpretations came to the discussion table.

In the web contracts, the problem is that most of us use an online disclosure of terms and get the party whom we want to bind in a contract to simply click a hyper link which says “I ACCEPT” or such other words which imply that the person is signing off on the contract as presented. However, in India, since electronic documents need to carry a Digital Signature or an e-Sign, the web based “Click Wrap Contract” cannot be considered as equivalent to an express contract signed by parties to the contract. However it can be considered as an “Implied Contract” since by the circumstances and action of parties a contract can be implied. However when there is a dispute, the contract on the web which is not equivalent to a written contract under our law becomes a standard form contract which can be challenged as “unconscionable” if the terms are unreasonable.

In the subject judgement, Supreme Court has clarified that it will give weightage to the express contract and not the implied contract when there is a valid “Express Contract”. When there is no valid “Express Contract” a question will arise as to how the Supreme Court would interpret the “Implied Contract”.

May be we have to wait for some future time when another Supreme Court order may clarify this but if the Court gives validity to an “Undigitally signed electronic document” as if it is a valid contractual document, then it would be violating the requirements of ITA 2000/8. Hence it will have to disregard the existence of the web contract altogether and take it as an “Implied Contract” where only the “Penta-Test” will be the barometer that would determine every clause of the contract which is trying to be enforced.

This is an interesting challenge which will have to be tackled by every e-commerce consumer.

It is here that CEAC-Evidence Drop Box concept may come to the assistance of the consumer.

Naavi

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