TOPIC

For a promise to be enforceable as a contract some consideration must be given in exchange for the promise i.e. the promisor must receive a benefit or the promisee must suffer a detriment. Illustrate this concept with reference to relevant case laws.

Introduction
Consideration is defined as, some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. For example: A wants to sell his car to B for TK. 5 lacs. In this example A is giving his car to B in consideration of TK. 5 lacs, whereas, B is giving TK. 10 lacs to A in consideration of the car. Subject to certain exceptions, an agreement is legally enforceable only when each of the parties gives something and gets something else in return. The something given or obtained is called consideration, but in case where one party receives something is exchange for nothing is usually not enforceable by law. The consideration may be an act or forbearance or a promise to do or not to do something. Consideration may be past, present of future, but only those are valid which are lawful. The contentions are explained in the latter parts of this paper. Nonetheless, consideration acts as a potent criterion for the enforceability of a promise as a contract. Consideration is a historical device, elimination of it may arise some problem among parties to a contract. Instead some element of consideration could be altered and some could be eliminated.

Types of Consideration:
a. Past Consideration: When the consideration of one party was given before the date of the promise, it is past consideration. Example, Suppose Mr. A did some work for Mr. B on the 15th of September, in October Mr. B promised to pay Mr. A some money. It is past consideration. Under English law past consideration is not a consideration and is Void, but according to the Indian law, past consideration is a good consideration because it includes the words has done or abstained from doing. b. Present Consideration: Consideration that moves simultaneously with the promise is present consideration or executed consideration. Example, Mr. D buys a tooth brush from the store and pays immediately. The consideration moving from D is present or executed consideration. c. Future Consideration: When the consideration is at a future date, it is future consideration or executory consideration. Example, Mr. C buys goods from the stores and promises to pay at a later date.

The debatable
In recent times consideration is debatable in every aspect possible and scholars are debating in every aspect of proving their point in case of consideration. Atiyah is one of the famous scholars who stated his judgment on consideration stating the fact that it has no unified and clarified and it merely refers to sufficient reason for enforcing a promise. In short he wanted to state that consideration has become a traditional norm and convention of the English legal code and thus has turned out to be a normal criterion for the enforcement of a promise. In return another scholar Professor Treitel has tried to prove his logic and make Athiyahs logic to be irrelevant. He stated that such a view is technically the cancellation of any existence of any applicable rules of law. He stated that consideration gives the court various aspect to deal with before a promise is being contractually enforceable. That declares if consideration is not available in
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the case then a promise that might not be recognized in the court and they might not be supported. The court has also declared that involvement of consideration have helped the court resolve many problems without any doubt. The court has also declared that said that the enforceability of a promise as a contract is made essential by the inclusion of consideration which is a based upon the benefit/detriment analysis that is agreed upon by the contract scholars as a good reason. Thus it can be said that Athiyah considers benefit or detriment to be a good reason for enforcing a promise while they are not always a sufficient reason for enforcing a promise, where as Treital didnt considered this rather he was more formal. It can be concluded that a promise to be enforceable in a contract mainly depends upon the benefit/detriment analysis.

The scope of Contract

The scope of contract has been categorized into three subdivision part Consideration must be sufficient but it need not be adequate: This means that promise will not be enforceable unless some value is given by the person who is giving the promise. Consideration might not be enough but must hold some economic value. The court sometimes reject the case if there is not enough consideration value in it. Moreover, adequacy should be present while enforcing any consideration or else in the argument of two parties one will be benefited and the other party will be a loser. In a case related to this point, a husband has expressed his wish that if the wife survived him, then she would be able to use the house. After his death, the executor, allowed the wife to use the house as the husbands wish and on a payment by the wife of $1 a year. Sometimes the claimant settles a claim for less than true value may appear to give up something for nothing but it depends on the parties of the contract. (Thomas v. Thomas (1842) In another case, the defendant sold a record to the customers in return for money and three chocolate bar wrappers. The plaintiffs owned the copyright of the record but the royalty fee was calculated in reference to the ordinary retail selling price and did not include the value of the chocolate wrappers, which was inadequate and unrealistic. {Chappel & Co Ltd. v Nestle Co Ltd. (1960)}.

Differences between English and Indian Law regarding Consideration:

1. Indian Law does not distinguish between Formal Contracts and Simple Contracts. 2. Under English Law past consideration is void but under Indian Law past consideration is a good consideration. Under Indian Law, consideration can be from the promisee or any other person but under English Law, consideration is only from the promisee.

No Consideration No Contracts Exceptions to the rule:

Consideration is essential for the validity of a contract but a promise without consideration is a law undertaking and cannot create a legal obligation. Exceptions: 1. Natural love and affection: Father giving a gift to his son without considering anything in return. He gave the gift to his son to show his love towards his son. Intangible returns: Natural affection of itself is not a sufficient consideration, like a sons promise not to bore his father with complaints about his fathers distribution of his property among his children was held not to be good consideration for the fathers promise not to sue the son on a debt owed by the son to the father. Pollok CB said that the son had not provided any consideration as he had no right to complain to his father and so is giving up hos habit if complaining. 2. Voluntary Compensation: D found Fs wallet on the ground and returned it to F. F in return voluntarily gave some money to D which D did not consider in getting anything in return. 3. Time-Barred Debt: D was supposed to collect $100 from E in a week. D could not collect the money in time and court cannot do anything about it, but E said he will give $50 back to D by the next week. 4. Agency: You give D a cheque to withdraw money from the bank, D withdrew the money without considering anything in return. 5. Completed Gift

Consideration relating to the past experience is not a good consideration In English law, past consideration is not preferred to be a good condition. It divided the consideration into two categories, executory and executed. Consideration which moves simultaneously with the promise is called executed and which takes place in a future date is called executory. Hence, it can be deduced that consideration is a codified element of the contract law that is very much circumstantial. PROMISE OF A DUTY IMPOSED BY LEGISLATION This means people are bound to the work they are assigned and they cannot deny the fact that promise has been done to ensure the proper use of the law. In a consideration, if a person should do more than he is bound to do, then it is a good consideration. If this element does not existed in consideration then most of the parties would have provided consideration of which they are already bound to do.

CONSIDERATION MUST MOVE FROM THE PROMISEE This states that a person can ensure a promise if he/she can provide enough consideration about the promise to be implemented. There is a opportunity where a third can take away the promise that is it can be transferred to the another party who is really interested in the case of taking the promise.

Performance of a contractual duty owed to the promisor

This states that when a party is bound to perform an obligation that is already imposed upon him, is not a good consideration. A seaman signed up for a voyage from London to the Baltic and back. In course of the voyage two sailors left the ship and the captain could not find any substitute. So, he promised to the rest of the crew that he will pay extra wages to them if they continue the journey back to home. But the master did not pay any extra wages after they had returned. The seaman cannot demand extra wages because they had not provided any new consideration, they performed their obligation of which they were already bound to perform.

Practical benefit
The promise who is promising in a contract must have some practical benefits from the existing contract even if he doesnt have any legal loss, he must claim his benefits beforehand the contract is assigned,

Consideration in Agency Contracts:

No consideration is necessary to create an agency. The acceptance of the office of an agent is regarded as sufficient consideration for the appointment. The agency contract generally provides for the amount of reward payable by the principal to the agent.

Part payment of a debt

This states that if a debtors total due is very less amount and if its not supported by any kind of consideration unless the debtor agrees to pay it in an early date. In Foakes v. Beer (1884), the plaintiff has obtained judgment against the defendant for $2090. She allowed the defendant to pay her by installment and not to take any proceedings to enforce the judgment. A judgment debt attracts interests from the date of the judgment. The defendant paid the debt and plaintiff claimed the interest. The plaintiff was allowed to recover the interest; even if she allowed foregoing the interest, the defendant had not provided any consideration for the promise. Part payment of a debt should be eliminated as an element of consideration because it is contradictory with practical benefit.

Estoppel and consideration

This states that if someone promises something to someone, then that someone is also responsible on providing promise and commitment towards any contract/ In Combe v. Combe (1951), a wife got a divorce from her husband. The husband promised to pay her $100 a year as a maintenance payment. So the wife did not apply to the court for maintenance payments. The divorce was finalized. The wife sued the husband as he never paid any money. Estoppels can be used as defense not as a course of action.

Conclusion:
For a promise to be enforceable as a contract some consideration must be given in exchange for the promise, which may contain some right, interest, profit or forbearance. For a consideration to come into action, first the parties must come to an agreement which can be either written or oral. Before oral contract were given high priority like legal written contracts because it was carried out the same way as to that of any legal written contracts with all promises and consideration properly carried out. However situations in modern days has changed. If any consideration made that may be favorable to the other party but not mentioned in the contract leads to lots of problem when those considerations are not fulfilled at the end of the task. As a result in todays time multiple contracts are made each time a party proposes a new consideration. This is done to avoid illegal acts like, influencing you to do the work faster considering you will receive extra amount of money, but after the task is over you did not receive the money as that extra amount was not in your contract. To dissolve these fraud acts, all past, present and future considerations are taken into account, and each time a new consideration is added to the contract, make sure that you prepare a new written contract rather than going for oral and thus avoiding from getting cheated.