Nov 9, 2022 | General
The Digital Personal Data Protection Act, 2023 (also known as DPDP Act or DPDPA-2023) is an act of the Parliament of India to provide for the processing of digital personal data in a manner that recognises both the right of individuals to protect their personal data and the need to process such personal data for lawful purposes and for matters connected therewith or incidental thereto.
With the entrance of the digital age, and where personal data to become the most wanted currency in the e-universe, India is giving ample consideration to digital privacy rights of the citizens. Visible in the centre of this movement is the so-called Data Protection Bill or DPDP Act shortly (Data Protection and Privacy Bill). Viewed as a complete set of rules which, with the aim of supervising the collection, processing and storage of personal data, the DPDP Act indeed is to bring the new digital era of data protection in India.
Understanding the Need
The soaring of digital technology has overhauled information-processing processes by changing the way people gather, send and use data. The fast expansion of digital world brought us in few words unimaginable ease of use and connection; though, the same evolution is engaging people in an active process of personal data usage discussion since the process is interconnected with safety issues. As an example, data breaches, unauthorized surveillance, and improper use of personal information have caught the data protection attention. People’s data have always been at stake, which made it imperative to implement strong measures regarding data protection legislation.
Awareness of the existing challenges, the Indian government began its journey of mapping a legal structure that not only caters the contemporary scenario’s but also conforms with the globally adopted strategies. When we consider India having the DPDP Act, we realize that this country is resolved to protect the digital privacy rights of its citizens against deterioration in an ever more interconnected global village.
The adoption of the DPDP Bill in the Parliament comes 6 years after Justice K.S. Puttaswamy v Union of India, a landmark case in which the Supreme Court of India recognized a fundamental right to privacy in India, including informational privacy, within the “right to life” provision of India’s Constitution. In this judgment, a nine-judge bench of the Supreme Court urged the Indian Government to put in place “a carefully structured regime” for the protection of personal data. As part of India’s ongoing efforts to create this regime, there have been several rounds of expert consultations and reports, and two previous versions of the bill were introduced in the Parliament in 2019 and 2022.[1]
Key Provisions
For the sake of enacting Personal Data Protection Act (DPDP Act) a set of legal instruments and rules has been put into people’s hands to bring in more responsibility and transparency into the field of personal data management, as well as introduce in the companies and institutions very tight rules and terms of data protection. Here are some key highlights of the bill: Below is some of the monthly bill highlights:
- Consent Mechanism: The act clearly outlines individual’s right to privacy through a consent contract and the introduction of the clear notification system of non-disclosure of sensitive personal information. This consent-based mechanism constitutes the critical principle that the individual should own their data and they should have the will power to decide how the data is used, shared and stopped in case they so desire.
- Data Localization: In the wake of the need to guard the data sovereignty and boost the security of sensitive personal information, the newly proposed Data Protection and Privacy Act (DPDP) compels to locate storage of some sensitive personal data inside the territory of India. This regulation indeed implying the prevention of the unauthorized traffic of confidential information in and putting bearing guidance in communications among nations which is a subject matter of data exchange.
- Data Protection Authority: The Act shall be passed to set up a Data Protection Authority which is the main supervisory body under the authority of DPDP Act and charged with the responsibility of observation of the implementation of the provisions of the legislation. The obvious task of the DPA is to verify the conformity to data protection principles, launch investigations into personal data breaches, and fine persons/organisations if the requirements are not complied with.
- Data Processing Principles: The DPDP Act provides for the codification of some of the fundamental principles that define the collection and processing of data and these comprise data minimization, purpose limitation, transparency, and accountability respectively. The fundamental aspects are a compass, containing the true order of the data which is processed by each of the stakeholders of the data.
- Rights of Individuals: Firstly, the law differentiates in non-transferable nature of the private data of every individual as thus, exceeding individual’s rights are accordingly, the subject of: access to one’s data, rectification, to be forgotten and data portability. Rights to individuals’ personal data and information a user can fully exercise these rights so as to take hold of how data controllers are utilizing them.
Challenges and Opportunities
Alongside the Data Protection Regulation Act of India that unquestionably heralds a great epoch in the Indian information security realm, some difficulties and complexities also prevail. One of the greatest concerns revolves around the question of how to it appears well between encouraging continuous developing and protecting privacy rights. The piece of legislature must successfully pass the challenges associated with regulating an economy centred around data without dissuading innovation or impeding progress with innovations.
Along with this, the efficient implementation of the DPDP Act will be developed based on competent enforcement mechanisms, capacity building classes and public awareness programs. Generating an environment of data privacy awareness needs conjoint efforts from all the actors along the whole field beginning from government agencies to the non-governmental ones, private companies, civil society organizations, and every individual citizen.
Besides these challenges exist incessant possibilities for India to emerge as world class in set data protection norms and regulatory laws. A Country like India which promote a data-driven ecosystem by practicing ethical data management will increase its economic digital attraction for foreign investors and upgrade its economy through innovation. Adding the element of high data protection standards to the norm can certainly serve to increase our standing in the international arena and promote contracting parties the ability to mutual adequacy agreements with others jurisdictions.
Conclusion
Enforcing the Data Protection and Privacy Act kick-starts a new web governance system in India wherein citizens will be provided with protection of their information and data. With the DPDB Act the dream of Indian digital-empowered society and knowledge economy is achieving a new life because for a certain duration data subjects have their data rights to control and the trust and accountability in digital innovation are maintained.
[1] https://fpf.org/blog/the-digital-personal-data-protection-act-of-india-explained/
Author: Rohan Patil, ISBR College
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Sep 19, 2022 | Indian Patents Act 1970, IPR & Business
The Patent Act, 1970 comprehends several proceedings from filing of the application till the grant of the patent. Examination of the patent application is one such process. In general, once the patent application is filed, a request for examination is filed in Form 18 u/r 24-B within 48 months from the date of priority. The filing of request for examination is followed by examination of the patent application by the controller.
Conventionally, the timeline for the grant of a patent was tedious and overlong. A provision to file for an expedited examination of application has been provided u/r 24-C of the Patent Rules, 2003 with amendments in 2016 and 2019. An expedited examination of application is filed in Form 18-A. A request for expedited examination of patent applications has to be filed along with a request for publication unless already published. In addition, a request for examination filed can also be converted to an expedited examination by filing Form 18-A under applicable grounds.
The grounds to apply for expedited examination include:
- India has been included as competent ISA or has been elected as IPEA
- Small entity
- Start-ups
- Natural person
- Department of Government
- Institution established by government
- Government company
- Institution financed by the government
A significant reduction in the span of grant of the patent is seen with expedited examination of patent applications. Under expedited examination of patent application, the examiner examines the application and makes a report within 1 month but not exceeding 2 months. Further, the controller issues a first statement of objections within 1 month from the date of receipt and the controller shall dispose the application within 3 months from the date of receipt of last reply to the first statement of objections,
The expedited examination of patent applications was introduced for start-ups initiatives under the 2016 amendment of Patent Rules, 2003. Later, the grounds were expanded under the 2019 amendment of Patent Rules, 2003. On filing a request for expedited examination, the applicant receives the first statement of objections within 2 months from the date of receipt and the applicant may receive a grant within 1.5 years from the date of filing/priority.
To promote start-ups, the IPO & DIPP has been taking many initiatives to speed up the patent grant process. A request for expedited examination has to be filed along with Form 28 and evidence for start-up which include a certificate of recognition by DIPP has to be filed.
The grant of a patent under expedited examination for start-ups assists in generating revenue for the research and development. Additionally, the grant of a patent assures authenticity of the invention for the investors. The grant of patent further provides complete protection against infringement which is a crucial aspect for start-ups. The market-value and market-presence are increased for the invention of a granted patent. With an early grant of patent, a complete public disclosure of the invention becomes feasible. Essentially, misuse and duplication of an invention can be prevented at a faster rate. Also, fast-tracking of examination and grant of patent application keeps the competitive inventions at check. For start-ups having patent rights, the company value is increased potentially in the market.
The expedited examination of patent applications has brought in an accelerated timeline for patenting procedures. The global IP standards are being coped with expedited examination of patent applications. In case of start-ups, filing an expedited examination of patent application followed by an early grant attracts funding and prevents counterfeiting of their invention. In addition to providing protection to the invention, the competition with the existing market is withstood upon grant.
By Anagha MS
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Aug 20, 2022 | Indian Patents Act 1970, IPR & Business
Parle Products introduced Parle-G way back in 1938. The biscuits themselves have had a long journey attaining global recognition, with the brand undergoing reimaging in 1982. One may wonder why an exceedingly popular and successful brand had to undergo reimaging after so many years of being introduced to the market and becoming a hit among consumers. The answer lies in an understanding of trademarks.
India has developed Intellectual Property Laws and awareness in the recent past and is still making constant developments in these laws, resulting in IP protection being a new yet essential field in the Indian Legal System. However, Parle Products, having been started during the Swadeshi Movement, has been around for a longer time. Like any successful business, Parle Products gauged the changing legal environment surrounding brand protection in India and adapted to these changes by reimaging ‘Parle Gluco’ and renaming it as ‘Parle-G’.
In order to understand the relevance of this particular change, it is important to understand two important limitations to trademark registration which in turn protects brands and other related intellectual property. First, if a trademark consists of a descriptive element, describing the specifics of the kind of product, such a trademark cannot be registered. Second, certain words, by virtue of them being used commonly to refer to a thing, belong to the public at large for use and cannot be owned by a private entity. These trademarks are called “Publici Juris Trademarks”.
In the case of ‘Parle Gluco’, because of the grounds mentioned above, Gluco could not be registered as a trademark. Gluco for Glucose biscuits is descriptive of the specifics of the kind of biscuits those were and cannot be used exclusively by one company. For example, in the case of M/s Hindustan Development Corporation Ltd. v. The Deputy Registrar of Trade Marks, the word ‘RASOI’, which is primarily associated with cooking, could not be registered as a trademark for cooking oil. [1]
Further, the term Gluco describing Glucose, a natural substance, is “publici juris”, that is, it belongs to the public at large, for anyone to use, and cannot be owned exclusively by a private entity. Thus, in Parle Gluco, ‘Gluco’ is considered to be the non-distinctive part of the brand name and therefore cannot be registered as a trademark. Similarly, in SBL Ltd v. Himalayan Drug Company, using “Liv” for “Liver” was considered as the non-distinctive part of the mark as it is common practice to use “Liv” for “Liver”, making it “publici juris.” [2]
With the rising popularity and demand for glucose biscuits, many other biscuit companies started selling ‘gluco’ biscuits. There existed unfair competition for Parle as it had created a consumer base for its Gluco biscuits which was now being divided among the many different alternatives, with no distinguishing brand name unique to the glucose biscuits started by Parle. In order to restore its consumer base and ensure brand loyalty, ‘Parle Gluco’, a brand name which could not be registered, was changed to ‘Parle-G’, a registered trademark and a unique product of Parle Products, in a reimaging done by Everest Brand Solutions.
The reimaging helped create a unique identity for the glucose biscuits started by Parle Products and helped restore its popularity amongst its loyal consumers.
By: Ria Mishra
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[1] M/s Hindustan Development Corporation Ltd. v. The Deputy Registrar of Trade Marks, AIR 1955 Cal. 519
[2] SBL Ltd v. Himalayan Drug Company, 1997 (17) PCT 540
Jul 20, 2022 | Indian Patents Act 1970, IPR & Business
Intellectual property (IP) refers to creations of the mind, such as inventions, designs, name of products and services, literary and artistic pieces of work, etc. To protect these creations of the mind, law comprises provisions in the form of patents, trademarks, copyrights, and so on. These rights are collectively called Intellectual Property Rights (IPR), where IPR is a kind of legal right provided by the Government for the protection of creations, provided the creations fulfil certain conditions. IP can be protected and registered under different legal frameworks depending on the type of IP.
IPR law is amongst the rare breed of law practices where professionals with varied backgrounds in domains such as engineering, biotechnology, chemical engineering, pharmaceuticals, and so on are fairly successful despite their seemingly unrelated backgrounds. Patent law is a domain of IPR law that requires practicing professionals to have a sound technical and theoretical understanding of science because patents primarily relate to core technologies, inventions and related work. Due to the ability of STEM graduates to understand technical aspects of technologies or technical inventions, most companies prefer them over advocates to handle the tasks of patent searches, drafting/filing/prosecution of patent applications and more.
It is interesting to note that in order to file patent application on behalf of the client in India, it is important for a person to be a registered Indian patent agent. A registered patent agent is a person who is firstly at least a graduate in science, has secondly cleared the Indian patent agent examination and lastly has registered themselves as a registered patent agent. Due to this, a patent agent who may not be an advocate becomes authorised to draft, file, prosecute patent applications on behalf of the clients. A person who is registered as an advocate with the Bar council but not as a patent agent is not authorised by the patent office to act on behalf of any client and draft/file/prosecute their patent application in India. The list of registered patent agents is published on the official website of Indian Patent Office (IPO).
Two terms used most frequently in the industry are “patent attorney” and “patent agent”, and it is therefore of prime importance to understand the difference between the two clearly. A patent agent is someone who possesses at the minimum an undergraduate degree, has cleared the Indian patent agent examination and has registered himself as a registered patent agent with the IPO. The Indian patent agent examination is generally conducted by the IPO once a year. A patent attorney on the other hand is an advocate who practices IP law and may or may not be a patent agent. Further, a patent attorney must be registered with Bar council of India as an advocate. An advocate is not eligible to write the Indian patent agent exam if he is not a graduate of a scientific domain. These limitations for advocates often results in a loss of direction for them regarding what potential opportunities await them if they want to practice IPR and in particular patent law. In this article, we will try to explore the areas of IPR for advocates to practice in.
Patent law
Before a patent application is filed, typically a patent search is performed to assess novelty of the invention. A patent application is published after an expiry of 18 months from the date the patent application is filed, where this date is called the priority date or date of filing. After the application is published, there may be an opposition to the grant of patent and this opposition is called as pre-grant opposition. However, if the opposition is filed within 12 months from grant of a patent, the opposition is called post-grant opposition. Further, if opposition is raised after the elapsing of 12 months from the date of grant of the patent, it is called revocation. An advocate who is not a patent agent can handle such oppositions or revocations before the Controller of Patents or IPAB (Intellectual Property Appellate Boards).
Advocates can also conduct their practice in the following areas:
- Patent or IP audits at the time of acquisition & merging of companies where there may be a need to check legal status of patents, and docketing of the same for upcoming deadlines, renewal fee calculation, etc.
- Valuation and commercialisation of patent. Negotiations and drafting of technology transfer-related contracts may also be required to be done by an advocate at the time of such transfer.
- Docketing of patent cases and coordination with foreign attorneys regarding foreign patents is required by most law firms and this can also be undertaken by advocates.
- Searches such as freedom-to-operate searches can also be carried out by advocates. Specialized searches such as these are usually performed by patent agents but advocates have a vital role to play in claim interpretation and referring right statues along with case-laws. In fact, several companies require such FTO reports to be signed by advocates.
- Patent-related disputes like patent infringement or litigation.
- Portfolio management of innovative companies to look after legal-commercial strategies, planning regarding portfolio creation and management, licensing of technologies, etc.
Trademark law
The number of trademark applications filed in trademark registry are far more as compared to patents. In fact, the number of disputes, infringement cases and related litigation matters are also very high compared to patents. Due to this, trademark is a very potential area for advocates to specialise in and must be an advocate in State Bar Council but for non-advocates, it is important to be a trademark agent to file and prosecute trademark application and must have to clear and qualify the examination of Trademark Agents Examination However, there is no need for an advocate to be a trademark agent. The scope of work includes:
- Advising clients on selection of trademark for new products and services
- Trademark searches to give opinion on strength of the mark
- Preparing, filing, prosecuting trademark application
- Handling oppositions, disputes, litigations
The trademark agent/attorney helps in choosing an apt trademark after ensuring compliance with the legal norms and thus reducing the chances of rejection of trademark application. The filing of the application has very specific requirements that can be dealt with by ease by a trademark attorney in India. In case there are any objections to the trademark registration, it is upon the attorney to reply to the objection and provide with an alternative. Trademark attorney also provide important advice about the nuances of trademark infringement.
Copyright Law
Copyright laws are very necessary to protect your original works and determine the ownership of creative output such as written works, music and motion pictures. In problems related to copyright issues and cases, the copyright attorney helps in getting the authority and ownership of original works. The Copyright Attorneys in India help creators of unique work in filing an application that needs to be submitted for copyright registration. They also help in prosecuting and registration of patents, designs meant for industrial sector, trade mark, etc. They not only help in the filing of the application but also its licensing, renewal and carrying out its enforcement.
In case, after filing an application for copyright registration, there are any defects, these defects are communicated to the applicant. Copyright attorney can go through this application and help the applicant to identify the defects and remove them.
Other forms of IPR
Further, for an advocate, all areas for filing, prosecution of applications for registration as well as enforcement are open in case of , design, Geographical Indication (GI), etc.
Conclusion
IPR is a potential area to for advocates to continue their practice. However, it is to be understood clearly that an advocate is not authorised by the Indian Patent office to draft/file/prosecute patent application in India or PCT. Despite this, there are numerous opportunities for advocates in other areas of patents, trademarks, copyrights, GI etc.
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Jul 19, 2022 | Contracts
Section 2(f) of The Indian Contract Act, 1872 says that “Promises which form the consideration or part of the consideration for each other, are called Reciprocal Promises”.[1] In essence, this implies that promises exchanged in a contract are referred to as reciprocal promises. When multiple promises must be fulfilled concurrently, the promisor is not required to fulfil them unless the promisee is prepared and willing to fulfil his end of the bargain.[2] This principle has been established under Section 51.
For example, If Party A and Party B sign a contract wherein A will deliver particular goods to B and the payment shall be made in cash upon delivery, then there is no obligation on A to deliver the aforementioned goods unless they see a willingness on the side of B to make the payment in cash.
In the majority of business contracts, two or more parties normally agree to fulfil certain responsibilities toward one another. Such responsibilities may take the form of reciprocal promises, which are assurances that provide some or all of the consideration for one another. In other words, the performance of the responsibility of a party is conditional upon the other party completing their own. The notable clauses with respect to reciprocal promises are Sections 51 to 54 of the Indian Contract Act of 1872. While Sections 51 and 52 describe the various circumstances in which a reciprocal promise may be applicable, Sections 53 and 54 deal with instances in which one party breaches its responsibility.
Background
Contracts are the foundations for many agreements. Contracts often include one party promising to do something in exchange for the other party performing another act. However, parties to contracts sometimes only agree to take particular actions or make promises to take certain actions. Promises are not tangible, in contrast to an act. As a result, several questions may arise because of its nature. One is considered to make a proposal when he or she indicates their will to do (or not do) something. A proposal becomes a promise when it is accepted by the other party (to whom it is offered). In this case, the one who makes the proposal is the “promisor” and the individual to whom this proposal is made to is the “promisee”. The act of the promise is known as “consideration of the promise” when the promisee acts in accordance with the promisor’s wishes and either fulfils the promise or refuses to fulfil it. An agreement is created by these promises. Reciprocal promises are the kind of promises that make up an agreement.
Consideration and Promise
Under Section 2(d) of the Act, it states that consideration occurs when the promisor makes a promise to do or not do anything; this action is referred to as consideration of the promise. Reciprocal Promises is the term used when such promises constitute an agreement. Reciprocal promises are a portion of the consideration or make up the consideration for the contract, as stated in section 2(f) of The Indian Contract Act. A promise for a promise that creates an agreement is called a reciprocal promise.
A question may arise as to whether every consideration can be considered as a reciprocal promise. Consideration is typically referred to as a reciprocal promise since it is a promise made by the promisee to the promisor as part of an agreement. Similar to reciprocal promises, consideration is a promise for a promise and a reciprocal promise is a promise for a promise, however specifics will depend on the circumstances and nature of the transaction. Consideration may include cost or some value in exchange for the promise as a consideration. Each transaction may include a different amount of consideration. As an illustration, consider money or a commitment as consideration to do or not do anything.
To answer another question as to whether every reciprocal promise is a consideration, reciprocal promises are not regarded as consideration. Reciprocal promises are a list of commitments made by both parties to a contract. Reciprocal promises create agreements. However, depending on the transactions occurring, there could be exceptions to the statement.
Types of Reciprocal Promises
- Mutual and Independent
Although not protected by the Act, this idea has developed via jurisprudence. It requires the contracting parties to carry out certain duties independently of one another, and their execution is not reliant on the other party carrying out its obligations under the agreement. However, the contract requires the fulfilment of these separate and overlapping obligations.
For example, let’s say that “A,” a government organization, and “B,” a private contractor, enter into a contract for “B” to construct a bridge. If such a contract requires “A” to disclose information on, for instance, power projects to “B,” but such information has no bearing on building the bridge, then “B” will not be released from fulfilling its commitment to build the bridge simply because “A” did not provide the pertinent information. Although they are mutual and independent, the two pledges made by the parties to one another are binding. In fact, even if “B” falters on the bridge construction, “A” will still be required to divulge information about the power projects. However, even if the aforementioned two commitments are mutual and independent, the contract’s conditions would be maintained if it specified that they must be fulfilled in a specific sequence.
In the landmark case of Mrs. Saradamani Kandappan vs. Mrs. S. Rajalakshmi and Ors[3], The Supreme Court affirmed the provisions of the agreement and acknowledged the mutual and independent nature of the reciprocal promises. Rajalakshmi and Saradamani had struck a deal for the purchase of a plot of property, which required a number of monthly payments. Prior to making the final payment, Saradamani requested that Rajalakshmi present the title paperwork. Saradamani failed to make the last payment as a result of Rajalakshmi’s refusal. Rajalakshmi cancelled the contract as a result of the last instalment not being paid on time. Following litigation in many venues, the Supreme Court ruled that the two promises—paying the last instalment and displaying the title documents—were mutually incompatible. Saradamani had brought a lawsuit for a particular performance. It also ruled that Saradamani’s reluctance to pay was improper since the contract did not stipulate that the buyer must first examine the title papers before making payment. However, the Supreme Court determined that the contract was dissolved because of the passing of time and ordered Rajalakshmi to refund the money she got from Saradamani.
- Concurrent
This is a typical instance of a reciprocal commitment when the parties are required to carry out their duties overtly or implicitly concurrently. If the other party is not “ready” and “willing” to carry out its responsibility, the party willing to execute its promise will be excused from doing so.
For example, in the previously provided example, if “A” was required to engage vendors through a tender process to source some raw materials for “B,” including those sourced by “B,” then “B” might discharge itself from completing its commitment if “A” was not “ready” and “willing” to issue bids on time. In this example, simultaneous fulfilment of “A’s” and “B’s” reciprocal promises is essential to the contract’s successful completion. The Supreme Court ruled in J.P. Builders v. A. Ramadas Rao[4] that “readiness” relates to financial capability and “willingness” refers to the behaviour of the person that is seeking performance, and that typically the former is supported by the latter.
- Conditional
This is the most typical kind of reciprocal promise, and it nearly always becomes a point of contention anytime there is a disagreement over a government contract that has been broken. According to this, the performance of one party is dependent upon the other party fulfilling a duty. The first party would not be able to keep its promise if the second party did not carry out its duties in line with the contract. Whether or not a promise is deemed conditional depends on the specifics of each situation.
For example, resuming the earlier example, if the contract between “A” and “B” also provided that “A” would construct a road leading to the proposed bridge in order to allow “B” to transport large machinery and equipment to the site, then “A’s” breach of this obligation would have an effect on “B’s” ability to fulfil its portion of the agreement. The transaction would still be seen as a reciprocal commitment owing to its fundamental nature and purpose, i.e., without the road, construction on the bridge cannot begin. Even if the contract did not clearly state that building the road is a precondition to beginning work on the bridge.
In M/s Shanti Builders vs. CIBA Industrial Workers’ Co-Operative Housing Society Ltd.[5] , a disagreement erupted over certain construction work that Shanti Builders was required to do. According to CIBA, Shanti Builders failed to finish the building work in line with the contract, which caused significant losses for them. On the other side, Shanti Builders claimed that it had not received a plot of land as the contractually required payment for the building work that had already been finished and that it would be unable to proceed with the next stage of the project unless such payment was made. The court backed Shanti Builders’ arguments after hearing from the parties and adopted the stance that if the fulfilment of a contract calls for a specific sequence (even if it is not expressly specified), then such sequence must always be followed. It also ruled that in cases where reciprocal pledges are reliant on one another, one party cannot demand the fulfilment of a promise if the other has not fulfilled its own.
Consequences to default
When a contract contains reciprocal promises, which means that one of them cannot be performed or that its performance cannot be claimed until the other has been fulfilled, and the promisor of the last-mentioned promise breaks that promise, that promisor cannot claim the fulfilment of the reciprocal promise and must instead compensate the other party to the contract for any losses that such other party may incur as a result of the contract’s non-performance.
For Example, A hires B’s ship to transport cargo from Bombay to Mauritius that B will furnish, with B getting a certain freight in exchange for transporting the cargo. A does not supply the ship with any cargo. A cannot demand that B fulfil his commitment, and must instead seek recompense from B for the harm that B suffers as a result of the contract’s non-performance.
Conclusion
Commercial contracts sometimes include reciprocal promises, particularly those that include the government, such as those for energy, infrastructure, etc. Courts frequently wrestle with contracts that contain reciprocal promises and have invalidated arbitral decisions made under Section 34 of the Arbitration and Conciliation Act due to an incorrect interpretation of reciprocity, underscoring the fundamental significance of this concept. Therefore, it is necessary to comprehend the subtleties of the interpretation, ramifications, and degree of responsibility placed on each side by such reciprocal promises.
Author: Ankitha Amby, Faculty of Law, PES University
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