The Law of Contract in Sri Lanka
Sources of the law
The law of contracts in Sri Lanka (like the law on other subjects) is derived from a variety of sources, as under:
(a) The Roman Dutch law;
(b) The English law;
(c) The personal law;
(d) Sri Lanka’s statute law;
(e) Indigenous customs.
This is mainly due to two factors. The political history of the country is the first factor, as the country was in the last five centuries been ruled successively, by the Portuguese, the Dutch and the British, until it became independent. The second factor is the heterogeneous character of its population.
As to personal law (mentioned above), it consists of:
(i) the Kandyan law;
(ii) the Thesawalamai ; and
(iii) the Muslim law.
The Thesawalamai is a system of personal law, applicable to “Malabar inhabitants of the Province of Jaffna” and was codified by the Dutch in 1707.
Roman Dutch law
The Roman Dutch law is not applicable in its entirety in the Sri Lanka but only so much thereof as may be shown to have been introduced into Sri Lanka. The Jurists most commonly referred to (in the context of Roman Dutch law) are the following authors:–
(a) Voet (who is the most respected);
(c) Simon Van Leeuwen;
(d) Van der Keessel
(e) Van der Linden
(Weeramantry, page 38).
Roman Dutch law is regarded as the “common law” of Sri Lanka, but statute law may provide a different rule.
English law has worked its way into Sri Lanka, partly through statutes which themselves enacted rules of English law, partly by tacit adoption by judicial decisions and partly by tacit use of English legal concepts (Weeramantry, page 44).
Among the statutes directly introducing English law into Sri Lanka is the Civil Law Ordinance No. 5 of 1852 (Cap. 79), which, by sections 2 and 3, introduced the law of English and in maritime and commercial matters (unless there is a contrary provision in a statute of Sri Lanka).
Sri Lanka Statutes
Again specific statutes of the country have replaced Roman Dutch Law on particular matters. Thus, the age of majority in Roman Dutch law which was 25 years was replaced by the Age of Majority Ordinance (Cap. 66) which introduced the age of majority as obtaining in English Law.
Similarly the Roman Dutch institution of “Community of spouses” was abrogated in Sri Lanka by the Matrimonial Rights and Ordinance (15 of 1876).
Essentials of a contract
The essentials of a contract according to the legal system of Sri Lanka are as under:
(a) agreement between the parties;
(b) actual or presumed intention of the parties to create a legal obligation;
(c) due observance of prescribed forms or modes of agreement;
(d) legality and possibility of the object of the agreement
(e) capacity of the parties to contract;
[Weeramantry, page 81].
[The Common law doctrine of “consideration” does not apply to civil law systems, such as the Roman Dutch law].
Offer and acceptance
It is an elementary rule, that every contract requires an offer and an acceptance. Hence an offer or promise which is not accepted, is not actionable [per Mr. Justice Weerasooriya in Muthukuda v. Sumanatwathie, (1962) 65 NLR 205, 208, 209]. It has been stated that it is a very elementary proposition of law, that a contract is concluded, when in the mind of each contracting party there is a consensus ad idem.
Noorbhai v. Karuppan Chetty, (1925) 27 NLR 325 (P. C.)(per Lord Wrenbury)
An offer is a promise, which is in its terms, conditional upon an act, forbearance or return promise being given in exchange for the promise or its performance Pollock, Contract, (13th ed.), page 4.
An offer must be definite. An invitation to treat, and preliminary negotiations, do not amount to an offer. An advertisement of willingness to sell or let out a house, is not an offer. [Lallyet v. Negris & Co., (1911) 14 NLR 247].
A “tender” notice is not an offer. It is the tenderers positive reply to such notice, that becomes an “offer” [Attorney General v. Vithilengam, (1941) 43 NLR 117, at 118].
Withdrawal of offer
In English and in Indian Law an offer can be withdrawn before it is accepted [Dickinson v. Dodd, (1876) 2 Ch. D. 463]
However, in Roman Dutch law, if an offer is made with a stipulation that it shall be kept open, then it cannot be revoked for during the stipulated period, or (if no period is stipulated, it cannot be revoked for a reasonable period (Weeramantry, pages 140-141, 142, para under the head “options”). This difference seems to arise primarily because of the fact, that Roman Dutch law (unlike the common law), does not recognise the need for “consideration” in a contract.
There has emerged the concept of “option” (in Roman Dutch law) which is an offer to keep open, for a definite or indefinite period, an offer that has already been made. In such a case, the offer cannot be withdrawn for the specified period. If the “option” is accepted, then legal consequences may ensue, even if the (substantive) offer is not yet accepted. Thus, a “contract” to keep an offer open is valid (in Roman Dutch law), though there is no consideration for such an undertaking.
Intention to create legal relations
Legal writers generally emphasise that in order that a contract in the eye of the law can come into existence, there should be an intention (on the part of the parties), to enter into a legal relation. [Law Revision Committee (UK), 6th Interim Report, page 15]. In Roman Dutch law also, the proposition is recognised, that either such an intention must exist, or there must be circumstances from which it can be presumed. [Lee, Roman Dutch Law (5th ed.) pages 220, 221, cited by Weeramantry, page 155 footnote 1].
Normally, the doctrine does not receive separate treatment in common law because, at common law “consideration” (which is an essential component of contract in law) ensures that the parties were serious about the transaction entered into. Nevertheless, there are cases where this aspect may become relevant, even in common law [Cf. Balfour v. Balfour, (1919) 2 K. B. 571].
Besides this, there do arise situations where, though there is a vague desire to enter into a contract at a future date, there may be no firm resolve present to enter into a legally binding agreement. [Cf. Rose and Frank v. Crompton, (1923) 2 KB 261; on appeal (1925) AC 445 (HL)].
So far as Roman Dutch law (which is, by and large followed in Sri Lanka on matters and expressly subjected to English law) is concerned, it does seem to recognise that “the evidence should establish clearly that the intention of the parties was to create a legal obligation” [Lee, Roman Dutch Law, 5th ed. page 221; Weeramantry, page 156 and footnotes 7 and 8].
It follows, from the above discussion, that an agreement which expressly provides that it is not to be justiciable or that it is a mere “honour” clause, would not create a legally enforceable contract, in Sri Lanka. [Weeramantry, page 158].
Cf the following English Cases:–
(i) Jones v. Vernon’s Pools Ltd., (1938) 2 All ER 628;
(ii) Appleson v. Littlewood Ltd., (1939) 1 All ER 464.
In Sri Lanka, writing is required for certain kinds of contract.
Following are the important examples:–
(a) Section 12, Prescription Ordinance (Cap 68) – acknowledgment for the purpose of limitation.
(b) Sections 7, 8, 9 and 10, Contracts for Hire and Service Ordinance – contracts of hire or service of servant if made for a period exceding one month (including contracts entered into in India) and contracts terminating such contracts.
(c) Section 10, Money Lending Ordinance (Cap 80) – provision that a promissor note is void if it is not accompanied by a written agreement, separately setting out the principal amount and the rate of interest.
(d) Section 20 (3), General Marriages Ordinance (Cap 112) – promise to marry.
(e) Section 2, Prevention of Frauds Ordinance No. 7 of 1840, discussed in the next paragraph.
Prevention of Frauds Ordinance
By section 2 of the Prevention of Frauds Ordinance No. 7 of 1840, the following classes of contract shall be of no force or avail in law, unless they are in writing and signed in the presence of a licensed notary public and two or more witnesses and attested:–
(a) sale, purchase transfer, etc. or mortgage of immovable property;
(b) any promise, bargain, agreement, etc. for effecting any such object or for establishing any security, interest or encumbrance, affecting immovable property;
(c) any contract, etc., for the future sale or purchase of immovable property.
Section 17 of the Registration of Documents Ordinance, (Cap. 117), provides that a pledge, mortgage or bill of sale of movables shall not be of any force in law or give the transferee any right, etc.
(i) such property is actually delivered into the possession and custody of the pledge, etc., or
(ii) such pledge, etc., is created by a written and signed instrument and duly registered within 21 days, with the Registrar of Lands.
Consideration and Causa
The common law doctrine of “consideration” (return for a promise), as an essential component of the validity of a contract, is not prevalent in Sri Lanka, as a general rule. In the Roman Dutch law, (and in most continental systems based or the civil law) the simple requirement of “just causa” suffices [Weeramantry, pages 219, 279-283].
This ensures, that the promise is serious and deliberate. However, in respect of contracts governed by principles of English law (mainly because of statutory provisions) consideration may be required, e.g., contracts for the sale of goods and bills of exchange (which are governed by English law).
As regards the doctrine of “causa” (operative generally in Sri Lanka), it is now well established, it means the ground, reason or object of a promise, giving such promise a binding effect in law. It has a much wider meaning than the English term “consideration” and comprises the motive or reason for the promise and also purely moral consideration. [Mr. Justice Wemdt in Lipton v. Buchanan, (1904) 8 NLR 49, confirmed in 10 NLR 158].
In particular, a moral obligation suffices to constitute “causa” [Jayawickrema v. Amarasuriya, (1918) 20 NLR 293, 294, (Privy Council)].
This is in contrast with the common law, where (as a general) rule an existing moral obligation (which is not enforceable at law) does not constitute a good consideration [Currie v. Misa, (1875) LR 10 EX 153].
Lord Mansfield had in 1782 attempted to widen the scope “consideration” of so as to take within its scope a pre-existing moral obligation, [Hawkes v. Saunders (1782) 1 Cowp. 289]. But this theory was rejected within half a century [Eastwood v. Kenyon, (1840) 9 LJQB 409].
It has been said by a very high authority that moral obligation is essentially subjective, while consideration (as known to the common law) is essentially objective [Lord Wright, “Ought the Doctrine of Consideration to be Abolished from the Common Law” (1936) 49 Harvard Law Review 1225, 1235].
It would seem that legal systems all over the world may be classified into the following four categories in this regard:–
(a) Countries requiring “consideration” for the validity of contract. Most countries in the common law fold belong to this group.
(b) Countries insisting on causa, but without a statutory requirement to that effect. Sri Lanka belongs to this category. So also South Africa [Robinson v. Rendfontein Esels G.M.Co, (1921) AD at 236].
(c) Countries where causa is expressly and by statute required, for the validity of a contract.
Examples are – Dutch Civil Code of 1838, article 1356. Italian Civil Code of 1865, and Quebec Civil Code of 1858.
(d) Countries where the Civil Code requires causa but the requirement is not enforced in practice, e.g., articles 1108, 1131 and 1135, French Civil Code.
See the following :–
(i) Newman, “The doctrine of Causa or consideration in the Civil Law” (1952) 30 Canadian Bar Review, 662.
(ii) Von Mehren “Civil Law Analogues to Consideration” (1959) 72 Harvard Law Review 1009.
(iii) Walton, “Cause and Consideration in contracts” (1925) 41 LQR 306.
(iv) Weeramantry pages 251, 265.
Factors vitiating consent
As in other legal systems certain factors can vitiate the quality of consent and thus make the agreement void or voidable. These are – (a) mistake, (b) misrepresentation (fraudulent or non fraudulent), and (c) undue influence and coercion. In principle, the law of Sri Lanka also takes of provision for these factors. As to mistake, an erroneous impression, it may (i) prevent agreement, or (ii) nullify the agreement. Though, in Sri Lanka the system of law operative is the Roman Dutch law, yet English cases seem to be often cited in this field. Moreover, the Evidence Ordinance of Sri Lanka closely follows the Indian Evidence Act, 1872, so that, in the light of section 92 of that Ordinance (and its various provisos) evidence is freely admitted of factors nullifying a transaction for want of consent.
Illegality of a contract results on two consequences:
(a) the agreement is void;
(b) a party cannot recover what he has parted with (or paid), upon the illegal contract, (Weeramantry, page 332).
Contracts may become illegal:–
(a) because they are in conflict with a statute, or
(b) because they are illegal at common law, or
(c) because they are opposed to public policy or morality, (Weeramantry, page 333).
Express statutory prohibition (in Sri Lanka) is illustrated by sections 11-12 Rubber Control Ordinance (Cap 436), which render, it illegal for any person to sell or purchase rubber in excess of the prescribed quantity, unless he is a licensed dealer. The Lotteries Ordinance No. 8 of 1844 provides that all lotteries “shall be deemed and are hereby declared to be common nusances and against law”.
Common law prohibitions
As regards contracts which are illegal at common law the principal categories are:–
(a) transactions in things extra commercium, and
(b) contracts entered into with a fraudulent object (Weeramantry, pages 342 para 348).
As to things extra commercium, the Roman distinction between things absolutely extra commercium and things relatively extra commercium is recognised in modern Roman Dutch law. Some of the things absolutely extra commercium are the – (i) seashore, (ii) public streams, (iii) crown lands, (iv) minerals found thereon and public property. Amongst things relatively extra commercium are – opium, foreign currency, dangerous drugs and fire arms (for which a license is required).
As to fraud the classical statement is “Fraud is not a thing that can stand even when robed in a judgment” [Black on Judgments Vol. 1 section 292-293, cited by Bertram C.J., in Suppramaniam v. Erampakurukal, (1922) 23 NLR 417, 435, (FB)].
The most interesting aspect of Roman law is the Paulian Action, under which an alienation of property can be challenged, if it is fraudulent.
In Roman law, it was a collective action. In modern Sri Lanka, it is an action brought by an individual creditor who challenges fraudulent transfer by the dobtor.
Agreements contrary to public policy (in the law of Sri Lanka) are grouped as follows: (Weeramantry pages 363 -364, para 365):
(a) Agreements conflicting with the interests of the State:
(i) Agreements in conflit with to national security;
(ii) Agreements in conflit with to the public service;
(iii) Agreements in conflit with to the administration of justice;
(b) Agreements conflicting with considerations of morality;
(c) Agreements restraining individual freedom.
Administration of justice
Agreements conflicting with the administration of justice [Category (a) (iii) above], are of particular interest from the point of view of comparative law. In the Sri Lankan context, the following appear to be the principal examples of agreements void under this category:
(1) Stifling of criminal prosecutions;
(2) Agreements to give or suppress evidence for another person;
(3) Agreement to commit a crime;
(4) Maintenance and champerty;
(5) Intermeddling with suitors;
(6) Agreements ousting the jurisdiction of courts;
(7) Assignment of rights in a pending action;
(8) Abuse of the process of court.
Performance and tender of performance
Performance of a contract is a vast topic, covering time, place and manner of performance payment appropriation and the like. Here, it is proposed to concentrate on one point which is of special interest in the context of Sri Lankan law, namely, “tender of performance”. “Tender” means offer of performance. It must be made at the time and place agreed upon. The offer of performance must be unconditional. The importance of tender has been highlighted by the observation of one writer, that “tender is the instinctive resource of the oppressed, against the exactions of the relentless and it is for the person sought to be victimsed to make proper use of this resource” (Harris on Tender, page 1 cited by Mr. Justice Soertz in Fernando v. Coomaraswamy, (1940) 41 NLR R 466, 473].
Where the obligation is to pay money, tender does not in itself discharge the obligation but precludes a claim for interest, either in English law or in Roman Dutch law (Weeramantry, page 671). Tender must be made of the full amount due. Otherwise the creditor is not bound to accept. Tender should be unconditional. However, the law does not compel performance of that which has no utility avail. (lex non cogit ad inutilia). Hence, where the creditor has in anticipation, already refused to accept payment from the debtor then no further tender is necessary. [Sideek v. Sainambu Natchiya, 55 NLR 367].
An interesting aspect of Roman Dutch law is the process of judicial deposit (consignatie), offering effective protection to a debtor who wishes to pay, where the creditor refuses to accept payment. By this procedure a debtor who considers that the creditors claim is excessive or unwarranted can make a judicial deposit (Weeramantry, page 675). The relevant provision is contained in section 409 of the Code of Civil Procedure of Sri Lanka, which covers deposits by the defendant as well as by the plaintiff. The object of a judicial deposit is to enable a debtor to protect himself against (i) interest, (ii) costs, and (iii) other consequences of default. After the deposit is made, delay in court procedure does not affect the plaintiff, the maxim being cursus curiae neminem gravabit.
Damages for breach of contract
The main principle on which damages for breach of contract are awarded in Sri Lanka is that the sum to awarded should, as nearly possible be a sum which will put the wronged party in the position which he would have enjoyed if he had not sustained the wrong for which the award of damages is made and it should include both actual loss and loss of profit, (Weeramantry, page 888). Damages may be excluded by special clauses to that effect in the contract.
Damages may be:–
(a) general (damnum commune), or
(b) special (damnum singulare).
The former refer to direct loss which would be suffered by any person as a result of breach of the contract in question. The latter refers to losses which are personal and peculiar to the plaintiff being losses which other persons similarly placed would not have suffered. The distinction broadly corresponds to the common law distinction between “ordinary” damages and damages “specially contemplated” [Cf. Ratcliffe v. Evans (1892) 2 QB 524].
In regard to liquidated damages, the approach adopted in Sri Lanka seems to be substantially the same as in England (Weeramantry pages 912, 913). In English law, the court will regard the sum fixed by the parties as liquidatd damages as the quantum to be awarded, even though the damages actually sustained are very different from this figure [Swisse Atlantique etc. v. N. V. etc., 196, Rotterdamasche etc., (1966) 2 All ER 61 (House of Lords)].
In Sri Lanka also the court will not interfere with the mode of assessment adopted by the parties, unless the payment stipulated, is in reality a penalty (Weeramantry, pages 912 to 916).
It should be mentioned that the Roman law did not distinguish between, liquidated damages and penalty. But the distinction seems to have been adopted in Roman Dutch law particularly with the South African case of Pearl Assurance Co. v. Union Government, (1934) AD 560, 568 (Privy Council).
It may however, be mentioned that in South Africa, by the Conventional Penalties Act (15 of 1962), the legislature has ensured that liquidatd damages and penalty clauses are both subject to judicial scrutiny. Courts in South Africa have a descretion to reduce a sum which is considered excessive, in both cases. At the same time “penalties” can also be recovered, subject to the above limitation (Weeramantry, page 915). In other words, a contractual stipulation in South Africa can be judicially reviewed, whether it speaks of liquidated damages or penality.