Under the Indian Contract Act of 1872, a contract is a legally applicable agreement. [i] So, contract – an agreement – is by law. The formation of the contract itself may be explicit or implicit. Offer and receipt are two essential conditions for drafting contracts. “There is no doubt that the Court of Justice gave different directions in the above decision, but we believe that this was done without any discussion as to whether the Court of Justice could properly take such instructions. The decision was therefore made sub silentio. The importance of a sub-silentio decision was explained by the Court of Justice in the Municipal Corpn case. Delhi v. Gurnam Kaur (empty Paras 11 and 12) as follows: (SCC p. 110-11) If an offer is accepted, it results in an agreement. No contract can be entered into between two parties without acceptance of the offer.
Here is the definition of adoption under the Indian Contract Act, 1872 [iii] – “If the person to whom the proposal is made means consent, it is said that the proposal will be accepted. A proposal, if accepted, becomes a promise. The content of that decision, which is not preceded by a motive or principle, shows that it was an injunction within the meaning of section 142 of the Constitution concerning the particular facts of that case. The law of the Court of Justice is binding under Article 141. Any instruction of specific facts in the exercise of the section 142 jurisdiction is not a binding precedent. Therefore, the decision in Govinda Rajulu cannot form the basis for the exercise of an exemption granted to him in this case. A similar assertion was weakened by the Constitutional Bank of Umadevi (3) : (SCC, 39, Para 46) “23. With respect to the plaintiff`s Nagesha case… The previous sub silentio and without argument are never a moment.
The mere casual expression has no weight at all, and any temporary expression of a judge, however important, can be considered as an ex cathedra statement that has the weight of authority. 41. Does this principle apply to a conclusion of the law that was not addressed and was not preceded by a quid pro quo? In other words, can such conclusions be considered a declaration of law? Again, english courts and jurists have created an exception to the rule of precedent. It was explained as the rule of sub-silentio. “A decision is made under-silentio in the technical sense of the term, which must be attached to that sentence, if the particular point of law that is involved in the decision is not perceived by the Tribunal or does not come to mind.” (Salmond on Jurisprudence, 12. Edn., 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd., the Court did not feel bound by an earlier decision because it was rendered “without any argument, without reference to the decisive words of the rule and without any reference to the Authority.” It was approved by this court of the Delhi Municipal Corporation v. Gurnam Kaur. The bank found that “precedents do not have a single moment and without arguments.” The courts have therefore used this principle to move away from the injustices committed by unjust precedents.