The Role of Public Policy in the Interpretations and Enforcement of Force Majeure Clauses in Commercial Contracts in India

A Critical Analysis of Section 32 and 56 of the Indian Contracts Act 1872

Abstract

This research paper aims to critically analyse the effects of public policy in the interpretation and enforcement of force majeure clauses in commercial contracts, with a specific focus on the consequences for contract performance and the future legal implications within the framework of sections 32 and 56 of the Indian contract Act 1872. In order to analyse the ambiguity in the definition of an “extraordinary event” a mixed approach has been taken relying majorly on secondary data sources and following a textual analysis method in order to reach at plausible solutions to the ambiguity. Relying on it the author argues that the vague nature of the term extraordinary circumstances in force majeure clauses and the further absence of specific provisions dealing with such clauses in commercial contracts has led to a lot of issues in the implementation of law. Thus, the author seeks to investigate and analyse the influence of public policy principles on the interpretation and enforcement of existing force majeure clauses in commercial contracts and to further assess the implications of contractual performance and legal considerations under section 32 and 56 of the Indian Contract Act 1872, along with the growing need of proper statutory provisions to deal with such contracts. Thus, the author through the course of these arguments claims that there should be proper legislative amendment to the Indian Contract Act, 1872 in order to provide explicit definitions of the term "extraordinary events" within the context of force majeure, encompassing specific criteria such as un-foreseeability and the inability to control or mitigate the event's impact, further these amended provisions should be clearly worded to avoid any future anomalies and they should also explicitly include pandemics and future epidemics as extraordinary events in their definition, acknowledging their unique characteristics and impact.