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LAWFUL CONSIDERATION
Contract Law
Table of Contents
Introduction.....................................................................................................
Definition and its Requirements.......................................................................
"At the desire of the promisor" (Promissory Estoppel).....................................
Acts Done at Request......................................................................................
Promises of Charitable Nature.........................................................................
Unilateral Promises..........................................................................................
Revocation of Unilateral Promises...................................................................
Promissory Estoppel and Government Agencies..............................................
Estoppel of Licensee........................................................................................
Bibliography...................................................................................................
Introduction
Section 25 of the Indian Contract Act opens with the declaration that "an agreement made
without consideration is void ..... In England also "promises without consideration are not
enforced, because they are gratuitous".2 In Rann v Hughes the Lord Chief Baron SKYNNER
observed:
It is undoubtedly true that every man is by the law of nature bound to fulfil his engagements.
It is equally true that the law of the country supplies no means, nor affords any remedy, to
compel the performance of an agreement made without sufficient consideration.
In other words, it is a price of the promise. In the words of Pollock, "Consideration is the
price for which the promise of the other is bought, and the promise thus given for value is
enforceable." Another simple definition is by Justice PATIERSON:
Consideration means something which is of some value in the eyes of the law.... It may be
some benefit to the plaintiff or some detriment to the defendant.
But the most commonly accepted definition is that which was attempted by LUSH J in
Currie v Misa:
A valuable consideration in the sense of the law, may consist either in some right, interest,
profit or benefit accruing to the one party, or some forbearance, detriment, loss, or
responsibility given, suffered or undertaken by the other.
The definition of consideration as a "price of the promise" has been commended by Cheshire
and Fifoot. According to the learned writers, "it is easier to understand, it corresponds more
happily to the normal exchange of promises and it emphasises the commercial character of
the English contract. It reveals the essential simplicity of the concept.
Similarly, the Calcutta High Court has observed in a case that consideration is the price of a
promise, a return or quid pro quo, something of value received by the promisee as
inducement of the promise."
"The only ground for the making of the promise is the expense incurred by the plaintiff
in establishing the Ganj (market) but it is clear that anything done in that way was not 'at
the desire' of the defendants so as to constitute consideration. The act was the result not of
the promise but of the Collector's order.
the
desire furnishes a
good
consideration for his promise even though it is of no personal significance or benefit to him.
The decision of the Calcutta High Court in Kedar Nath v Gorie Mohamed has become
well-known in this connection.
It was thought advisable to erect a town hall at Howrah provided sufficient subscription
could be got together. For the purpose. To this end the Commissioners of Howrah
municipality set out to work to obtain necessary funds by public subscription. The
defendant was a subscriber to this fund for Rs 100 having signed his name in the
subscription book for that amount. On the faith of the promised subscriptions the plaintiff
entered into a contract with a contractor for the purpose of building the hall. But the
defendant failed to pay the amount and contended that there was no consideration for his
promise.
He was, however, held liable: Persons were asked to subscribe knowing the purpose for
which the money was to be applied, they knew that on the faith of their subscription an
obligation was to be incurred to pay the contractor for the work. The promise is: 'In
consideration of your agreeing to enter into a contract to erect, I undertake to supply money
for it.' The act of the plaintiff in entering into contract with the contractor was done at the
desire of the defendant (the promisor) so as to constitute consideration within the meaning
of Section 2(d).
It was indeed a promise to pay for the performance of an act and it could not have been
revoked once the promisee entered performance. In England also "the Jaw for centuries
has been that an act done at the request of another, express or implied, is sufficient
consideration to support a promise. Writing in an article Lord Justice Denning says:
is "Nowadays
consideration
promisee, If a man promises a charitable institution that he will pay 100 into its
funds if it procures nine other persons to do the same, justice requires that his
promise should be held binding on him as soon as it has procured
the nine others to pay 100 each; but the act done by the institution is not a benefit to
him nor a detriment to the institution." A trend of this kind is observable in a decision of
the Supreme
Court." On the death of their father, his two sons picked up a clash.
Their
mother intervened writing to the junior son that in case his elder brother did not
pay the sum of rupees fifty lakhs which was due to him out of the family assets, she
would pay the same. The brother paid a part of the amount. The mother supplemented
the payment to a certain extent, but she had still to pay the balance amount and for
that she claimed a reduction in the computation of her net wealth. The Court allowed
the deduction. The contract
sum
of
Contribution
Rs
5,000
was
promised
by
the
defendant
as
personal
was not a bare promise to subscribe, but also a request that the promisee should do
an act (construction of the town hall in that case), and that where there is no such request
for an, act the promise will be a bare promise and without any consideration. The
facts of the case were:
The Repair of a temple was in progress.
required and to raise this money subscriptions were invited and a subscription
list
raised. The defendant put himself down on the list for Rs 125 and it was to recover this sum
that the suit was filed.
But no recovery was allowed. CORNISH J proceeded like this:
The
plaint
found
the
consideration
for
the promise
relying on the promise of the subscriber incurred liabilities in repairing the temple.
The question is, does this amount to a consideration? The definition of consideration in
the contract Act is that where at the desire of the promisor the promisee has done or
abstained
from doing
something,
must
is called
have
consideration.
acted on something
amounting to more than a bare promise. There must be some bargain between them
in respect
of which consideration
from his
executors. The claim was considered to be unsustainable in as much as the promisee had
not undertaken any liability as part of the bargain with the promise.
Applying these
principles to the present case, the learned judge. said that there was no evidence of any
request by the subscriber to the plaintiff to do the temple repairs.
The principal difference between these cases is that in the Kedar Nath case the
construction of the hall began on the faith of the promised subscriptions, but in the
present case, temple repairs were already in progress when the subscriptions were
invited. The action was not induced by the promise to subscribe
independent of it.
Unilateral Promises
A unilateral promise is a promise from one side only and is intended to induce some action
by the other. Party. The promisee is not bound to act, for he gives no promise from his side.
But if he carries out the act desired by the promisor, he can hold the promisor to his promise.
His act is at the same time. An acceptance of and a consideration for the promise. "An act
done at the request of the offer or, in response to his promise is consideration,
and
The subscriber was, therefore, held not liable. Similarly, it has been pointed out in other
cases that a mere promise to subscribe to a charitable institution cannot be sued upon. Thus
where the defendant had agreed to pay from time to time, out of his own pocket certain sums
proportionate to the value of the goods imported by him, to a charitable society, the promise
was held to be not enforceable, being without consideration.
the Government if it or its officials in the course of their authority extended any promise
which created or was capable of creating legal relationship, and it was acted upon by the
promisee, irrespective of any prejudice. It was reiterated in Union of India v Godfrey
Philips (India) Ltd and was taken further when it was held that no duty of excise
was assessable on cigarettes manufactured by the assessee by including the cost of
corrugated fibre board containers when it was clearly represented by the Central Board of
Excise and Customs in response to the submission
Manufacturers'
Central Government that the cost of containers would not be included in the value of
cigarettes for the purpose of assessment of excise duty. In Delhi Cloth and General Mills Ltd
v Union of India it was held: 'All that is now required is that the party asserting the estoppel
must have acted upon the assurance given to him. Must have relied upon the representation
made to him. It means that the party has changed or altered his position by relying on the
assurance or representation.
indispensable requirement of the doctrine. It is not necessary to prove further any damage,
detriment or prejudice to the party asserting the estoppel.'
In Gourami Oil Mills v State of Kerala the Government was not permitted to go back on
its earlier promise of wider exemption from sales tax in pursuance of which certain
industries were set up. A subsequent notification curtailing the exemption was held to
be applicable to industries established after the notification.
A promise which is against public policy or in violation of a statutory prohibition cannot be
the foundation of an estoppel.
Estoppel of Licensee
The party who was granted liquor license was held to be estopped from saying
afterwards that some of the restrictions imposed upon his trade freedom, particularly the
one under which the Government reserved with it the power to vary issue prices, were
unreasonable. Unreasonableness
including public interest. Liquor consumption has to be reduced and, therefore, free trade of
such an item cannot be encouraged. The power to vary issue prices is a method of exercising
control of this trade. The courts will only prevent a crushing
Such
power does not also offended Section 29 of the Contract Act because there is no
uncertainty about the nature of the price variation clause. Its unreasonable use can always
be prevented under writ jurisdiction.
A person, who had acquired title to the land of a Council by adverse possession, agreed
subsequently to hold the same under a term license from the Council. On the expiry of the
term the Council told him to hand over possession. He tried to assert his title by adverse
possession.
Bibliography
The new
Singh Avatar, Law of Contract & Specific Relief Act, 9 th Ed. 2006, Eastern Book
Company, Lucknow