In The Control of Exclusion Clauses in England and India Mahesh M. Kumar sets out to produce a comprehensive comparative analysis of a subject which, from the English side at least, has already been thoroughly examined in several excellent monographs, as well as in the standard textbooks on the law of contract.

As a practising Indian lawyer, Mr Kumar’s principal concern is, not surprisingly, with the improvement and modernization of his own domestic law. This he sees as coming about as a result of lessons to be drawn from the more extensive English material. The author sets a confident, not to say high-handed, tone in his Preface, advising us that effective changes in Indian law will come about only “in the light of the conclusions arrived at by the author in the present work”.

The style of Mr Kumar’s writing and the quality of its content are also signalled in the Preface. For example, Mr Kumar has this to say on the nature of legal evolution: “Movement is not cyclic because an individual is not borne unto those conditions which hitherto determined his obligations and rights (hardly there were any rights).” Sentences such as this warn the reader that he is in for a bumpy ride. Further minor shocks quickly follow. For example, the Preface also informs us that the Unfair Contract Terms Act 1977 was designed to protect consumers against producers, and that the Sale of Goods Act 1979 considerably reduces “the well-established distinction between conditions and warranties”. A little later, we discover that the judgment delivered by Lord Devlin in McCutcheon v. MacBrayne [1964] 1 W.L.R. 125 was a dissent.

One of the author’s techniques, albeit probably an unconscious one, seems to be to make an inaccurate or misleading statement of law and then proceed to bring forward material which contradicts it. For example, having quoted the rule in L’Estrange v. Graucob [1934] 2 K.B. 394, that a “party signing is bound and it is wholly immaterial whether he has read the document or not”, Kumar states that “the position in India on this point of law is not much different”. He then examines Indian cases which in fact reveal that a signer will not be bound to terms of which he had no notice. This is a highly significant difference indeed (and one that English law might do well to follow). Similarly, the third rule in Parker v. South East Railway Co. Ltd., (1877) 2 C.P.D. 416 is carelessly mis-stated, Kumar saying that the recipient of a document would be bound provided it is delivered to him in such a manner that he could see there was writing on it. The cases which he then goes on to analyse reveal that this is not a correct statement of the rule, which in fact requires that the delivery be made in such circumstances that a reasonable person would realize that the writing contained contractual terms.

However, these are relatively minor tremors, compared with the seismic revelations contained in the chapters on the doctrine of fundamental breach. The author in fact devotes 118 pages from a total of 282 of text to a doctrine which most contract lawyers believed to have been finally staked in its coffin almost 10 years ago. But, writing in 1985, Mr Kumar is still able to devote painstaking analysis to cases such as Charterhouse Credit v. Tolley [1963] 2 Q.B. 683, Yeoman Credit v. Apps [1962] 2 Q.B. 508 and the aberrational Harbutts Plasticine v. Wayne Tank & Pump Co. [1970] 1 Q.B. 477. As an historical account of an interesting but by now redundant period of English contract law, Mr Kumar’s disquisition deserves credit for scholastic endeavour. However, one questions its value in any contemporary treatment of the subject of exceptions clauses. By contrast, a judgment as fruitful for survey and speculation as that of Lord Denning, M.R., in George Mitchell v. Finney Lock [1983] Q.B. 284 is left almost completely unexplored. The seminal work of Brian Coote, Exceptions Clauses, is