Interpretation clauses
Image Source: https://rb.gy/7tw89o

This article is written by Aditya Sunil Naik, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.

Introduction

Parties enter into contracts to record their rights and obligations in writing, to ensure clarity and avoid uncertainty. An essential component of a contract is an ‘effective date’. The effective date of a contract states the date from which the terms of the contract shall come into force. It is not to be confused with ‘execution date’, which is the date on which the contract is executed by the parties. Since an effective date governs when the rights and obligations of the parties come into effect, it is important to ensure that such a clause is properly drafted to reflect the intentions of the parties.

Effective date defined

There is no statutory definition of an effective date and when it should be or when it can be used. Like most terms in contracts, they can be drafted according to the negotiations between the parties in the manner they seem fit. Of course, any such clause drafted must be within the ambit of the Indian Contract Act, 1872.

While it is true that the rights and obligations of the parties only come into effect on the effective date, it is not mandatory for every contract to have an effective date. In such a case, the execution date would be treated as the effective date and the rights and obligations under the contract would commence from then.

Further, an effective date usually brings into operation clauses substantially relating to the rights and liabilities concerning the performance of the contract. Clauses relating to general matters such as governing law, dispute resolution, confidentiality, and severability are usually made to operate from the execution date since they deal with the operation of the contract itself and not so much with the rights of the parties.

The effective date can be prospective or retrospective as well. In the case of the former, the rights and obligations of the parties are effective from a later date, sometimes contingent on the performance of certain promises. This is the generally prevailing practise in most contracts. On the other hand, the latter makes the rights and obligations effective from a past date. This can be the case in contracts where the parties have recorded the terms in writing at a date after their oral agreement.

Purpose of the effective date

A natural question that may come to your mind is the need for an effective date when the execution date is given in an agreement. The answer is simple; it is done so that the parties can execute an agreement and get to the performance of their obligations at a subsequent stage, upon the completion of certain conditions. This ensures that the parties lock their interest in going further in the agreement without attaching all the obligations immediately.

Such conditions that are imposed that make the commencement of the agreement contingent on it are known as ‘Conditions Precedent’. Conditions precedent are obligations imposed on the parties that have to be fulfilled for the agreement to become effective. It may or may not be time-bound but it is advisable to include a time limit within which the clause has to be complied with, failing which the agreement would stand terminated.

Common situations when agreements are executed first but are effective later are found in commercial transactions such as mergers and acquisitions, business agreements, real estate transactions and contracts of insurance. In these cases, the parties commence due diligence and other preliminary processes to verify the subject matter of the agreement. Once they are complete with the due diligence, they have a complete idea about the contract being entered into. They are then in a better position to negotiate the terms of the transaction more effectively.

Therefore, by executing an agreement with a later commencement, the parties ensure that neither backs out at a subsequent stage. This helps establish trust that the parties are willing to follow through with the transaction, provided that the conditions precedent are complied with and there are no material facts that have not been disclosed.

Case laws on effective date

Now that the concept of an effective date is clear, it is useful to refer to a few judicial pronouncements on the issue, to get an understanding of how the courts interpret such a contractual provision.

1.    Oriental Insurance Co. v. Sunita Rathi

In this case, the owner of a vehicle had purchased insurance for the vehicle from the insurance company. The cover note issued with the insurance policy stated that the policy would be effective from 10.12.1991 at 2:55 PM. The vehicle had met with an accident on the same day at 2:20 PM. The Supreme Court held that where the effective date and time were clear from the facts of the case, there was no scope for any interference. The Court held that the liability of the insurer would commence from the date and time given in the cover note and not at any point earlier.

This case perhaps amply signifies the importance of an effective date in a contract. Even a difference of 35 minutes made a difference in the liability of a party under a contract. In another case having similar facts, the Supreme Court arrived at the same decision (New India Assurance Co. v. Bhagwati Devi and Others). Therefore, it is highly advisable to appropriately draft an effective date clause in a contract where it is necessary and to do so in a manner protecting the interests of the parties concerned.

2.  Bangalore Electricity Supply Company Limited (Bescom) v. E.S. Solar Power Private Limited and Others

This case is an excellent illustration of the need of having an accurate definition of an effective date and any associated definitions, such as a month, year etc. The present case is between the appellant, an electricity supply company of the government, and the respondents, special purpose vehicles created for setting up a solar power plant in different parts of Karnataka. The parties entered into a Power Purchase Agreement (PPA) after the respondents were awarded projects.

The terms of the PPA were such that the respondents were bound to commission the plant within a period of 12 months from the effective date, which was the date the PPA was approved by the Karnataka Electricity Regulatory Commission (KERC). Failure to do so would entitle the appellant to reduce the tariff that would be paid to the respondents. The appellant would also be entitled to claim liquidated damages for the delay in commissioning the plant.

The KERC approved the PPA on 17.12.2016. The plant started generating power on 16.12.2017 but was synchronized with the grid and started injecting power into the grid only on 17.12.2017. The appellant claimed that there was a delay of one day on the part of the Respondent to commission the plant and claimed a reduction in the tariffs payable and sought liquidated damages for the delay.

The PPA defined the Scheduled Commissioning Date as the date that falls 12 months from the effective date. A month was defined as a calendar month under the Gregorian Calendar. The PPA provided that references to any date or period shall mean and include such date, period as may be extended under the agreement. It further provided that any reference to any period commencing from a specified date and until the specified day shall include both such days or dates.

It was not disputed that the date of the event, i.e., the approval of the PPA by the KERC was 17.12.2016. Therefore, the Scheduled Commissioning Date was 12 calendar months from the said date, i.e., 16.12.2017. However, the Supreme Court held that since the agreement provided that the date of the event shall be excluded from the calculation, the Scheduled Commissioning Date would be 17.12.2017.

Therefore, it was held that the respondent was not in breach of the PPA and that the commissioning took place as per the schedule laid down. It is noteworthy to mention that there was a dispute about the commissioning of the plant, which was not examined by the court since it became infructuous upon the determination of the Scheduled Commissioning Date. The respondents relied on the minutes of the meeting of officials on 16.12.2016 to prove that the plant was commissioned on the said date.

Therefore, this case should serve as an example to readers to ensure that they define the effective dates clearly. Moreover, it is important to keep in mind ancillary definitions such as a month, year, day and calculation of time periods to ensure that there is no ambiguity or confusion. Further, it is important to define events clearly when a definition depends on the happening of an event. Additionally, it is crucial to ensure that all documentation about the implementation of the agreement is in order so that no waiver or acquiescence can be inferred.

3.   Madhya Pradesh Power Generation Company Limited & Anr. v. Ansaldo Energia Spa & Anr

As we had discussed earlier, parties put in certain conditions that are to be fulfilled before their obligations under the contract come into force. These are known as conditions precedent. Usually, in such contracts, the effective date is the date on which the conditions precedent are fulfilled or at a certain fixed period after such date.

In the present case, the respondent and the appellant entered into agreements for the refurbishments of the power plants of the appellant. The ‘zero date’, in other words, the effective date of the contract was defined to be the date on which the conditions given therein were fulfilled. They included the signature of the contract, furnishing of bank guarantees by the respondent in the favor of the appellant, among others. The contract provided that if the zero date did not occur within six months of the agreed date, the contract would then expire automatically without liability on either side and the prices would be subject to renegotiation.

The parties agreed upon a zero date, after which there was an exchange of correspondence between them. Several meetings were held between the parties for the resolution of issues that arose. About a year after the agreed zero date, the respondent then responded to a letter of the appellant, asking it to treat the contract as expired.

Among other issues, one argument raised by the respondent was the non-furnishing of a letter of comfort from the Power Finance Corporation, which was a fundamental condition in one of the contracts executed between the parties. This, however, was not present in the clause relating to the zero date. The matter went for arbitration before reaching the present court.

The Arbitral Tribunal rejected the argument of the appellant that there was a waiver on the part of the respondent in not obtaining the letter of comfort. It held that since the appellant did not insist on the production of the letter of comfort as a precondition to the zero date, there was nothing in the agreements that stopped it from claiming it at a later stage. The Court, however, rejected this view based on the evidence produced and held that the letter of comfort was a fundamental condition to the agreements and the failure on the part of the appellant was a breach.

Therefore, from this case, we can learn that an agreement is not only reliant on effective date and conditions precedent clauses, but also any other obligation that may be necessary to be discharged prior to its commencement. This emphasizes the importance of having a well-drafted, consistent and coherent agreement that accurately reflects the intentions of the parties.

Conclusion

From the above discussion and analysis, it is clear that using an effective date for an agreement is a useful way to get the parties to commit to proceeding with the transaction. It ensures that there is a certain degree of certainty that the parties shall follow through with the transaction, provided other conditions are fulfilled. The interpretation of an effective date is plain and simply derived from what is given in the contract. Provided that it is clear, there is virtually no scope for interference in such a clause. Even a difference of a few minutes, as seen above, can determine the contractual liability of a party. Therefore, parties must ensure that such clauses are drafted clearly to avoid any confusion or disputes in the future.


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here