February 2019
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International Journal of Management, IT & Engineering Vol. 9 Issue 2(2), February 2019, ISSN: 2249-0558 Impact Factor: 7.119 Journal Homepage: http://www.ijmra.us, Email: [email protected] Double-Blind Peer Reviewed Refereed Open Access International Journal - Included in the International Serial Directories Indexed & Listed at: Ulrich's Periodicals Directory ©, U.S.A., Open J-Gate as well as in Cabell‘s Directories of Publishing Opportunities, U.S.A A REVIEW ABOUT CONSIDERATION AND LEGAL REQUIREMENTS REGARDING CONSIDERATION Seema Assistant Professor Indus Degree College, Kinana Jind Abstract : Consideration is, in a sense, the price agreed to be paid by the promisee for the obligation of the promisor. Consideration has, therefore, been defined in an English judgment as "some right, interest, profit or benefit accruing to one party (i.e. promisor) or forbearance, detriment, loss or responsibility given, suffered or undertaken by the other (i.e., the promisee)" at the request of the promisor. The word consideration was described in a very popular English case of Currie v. Misa. Section 2(d) defines consideration as follows: " When at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing or promises to do or abstain from doing something, such an act or abstinence or promise is called consideration for the promise". (1) That is to say, consideration is the doing or not doing of something which the promisor desires to be done or not done. (2) Consideration must be at the desire of the promisor. (3) Consideration may move from promisee or any other person. (4) Consideration may be past, present or future. (5) Consideration need not be adequate, but should be real. LEGAL REQUIREMENTS REGARDING CONSIDERATION (i) Consideration must move at the desire of the promisor: Consideration must be offered by the promisee or the third party at the desire or request of the promisor. An act done at the desire of a third party is not a consideration. (ii) Consideration from promisee or any other person: In India, consideration may proceed from the promisee or any other person who is not a party to the contract. The definition of consideration as given is Section 2(d) makes that proposition clear. According to the definition, when at the desire of the promisor, the promisee or any other person does something such an act is consideration. In other words, there can be a stranger to a consideration but not stranger to a contract. (iii) Executed and executory consideration: A consideration which consists in the performance of an act is said to be executed. When it consist in a promise, it is said to be executory. The promise by one party may be the consideration for an act by some other party, and vice versa. (iv) Past Consideration: The words "has done or abstained from doing" [as contained in Section 2(d)] are a recognidon of the doctrine of past consideration. In order to support a promise, a past consideration must be moved by a previous request. It is the general principle that consideration is given and accepted in exchange for the promise. The consideration, if past, may be the motive but cannot be the real consideration of a subsequent promise. But in the event of the services being rendered in the past at the request or the desire of the promisor, the subsequent promise is regarded as an admission that the past consideration was not gratuitous. 1 International journal of Management, IT and Engineering http://www.ijmra.us, Email: [email protected] International Journal of Management, IT & Engineering (UGC Approved) Vol. 9 Issue 2(2), February 2019, ISSN: 2249-0558 Impact Factor: 7.119 Journal Homepage: http://www.ijmra.us, Email: [email protected] Double-Blind Peer Reviewed Refereed Open Access International Journal - Included in the International Serial Directories Indexed & Listed at: Ulrich's Periodicals Directory ©, U.S.A., Open J-Gate as well as in Cabell‘s Directories of Publishing Opportunities, U.S.A (v) Adequacy of consideration: Consideration need not to be of any particular value. It need not be approximately of equal value with the promise for which it is exchanged but it must be something which the law would regard as having some value. It may be noted in this context that Explanation 2 to Section 25 states that an agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate. (vi) Performance of what one is legally bound to perform: The performance of an act by a person who is legally bound to perform the same cannot be consideration for a contract. Hence, a promise to pay money to a witness is void, for it is without consideration. Hence such a contract is void for want of consideration. Similarly, an agreement by a client to pay to his counsel after the latter has been engaged, a certain sum over and above the fee, in the event of success of the case would be void, since it is without consideration. But where a person promises to do more that he is legally bound to do, such a promise provided it is not opposed to public policy, is a good consideration. (vii) Consideration must be real and competent: Consideration must be real and must also be competent. It must be something to which the law attaches some value. (viii) Consideration must not be unlawful, immoral, or opposed to public policy. SUIT BY A THIRD PARTY ON AN AGREEMENT Though under the Indian Contract Act, 1872 the consideration for an agreement may proceed from a third party, the third party cannot sue on agreement. Only a person who is party to a contract can sue on it. Thus, the concept of stranger to consideration is a valid and is different from stranger to a contract which means contract by the person who is not a party to the contract. The aforesaid rule, that stranger to a contract cannot sue is known as a "doctrine of privity of contract", is however, subject to certain exceptions. In other words, even a stanger to a contract may enforce a claim in the following cases: (1) In the case of trust, a beneficiary can enforce his right under the trust, though he was not a party to the contract between the settler and the trustee. (2) In the case of a family settlement, if the terms of the settlement are reduced into writing, the members of family who originally had not been parties to the settlement may enforce the agreement. It has already been discussed that an agreement results from a proposal by one party and its acceptance by another. We have already discussed offer, acceptance and consideration in detail. We shall now discuss in detail the elements which constitute a valid contract enforceable in law. Section 10 of the Indian Contract Act provides that an agreement in order to be a contract, must satisfy the following conditions: (1) it must be made by the free consent of the parties; (2) the parties must be competent to contract; (3) it must be made for a lawful consideration and with a lawful object; (4) it should not have been expressly declared as void by law. Also, there must be consensus ad idem or identity of minds in the sense that parties have agreed about the subject matter of the contract at the same time and in the same sense, as evidenced by offer and acceptance (Section 13). It has also been observed that the agreement must import an intention to create legal relationship between the parties, and that agreements relating to social matters are not enforceable by law. 2 International journal of Management, IT and Engineering http://www.ijmra.us, Email: [email protected] International Journal of Management, IT & Engineering (UGC Approved) Vol. 9 Issue 2(2), February 2019, ISSN: 2249-0558 Impact Factor: 7.119 Journal Homepage: http://www.ijmra.us, Email: [email protected] Double-Blind Peer Reviewed Refereed Open Access International Journal - Included in the International Serial Directories Indexed & Listed at: Ulrich's Periodicals Directory ©, U.S.A., Open J-Gate as well as in Cabell‘s Directories of Publishing Opportunities, U.S.A FREE CONSENT According to Section 13, " two or more persons are said to have consen ted when they agree upon the same thing in the same sense (Consensus-ad-idem). Consequently, when parties to a contract make some fundamental error as to the nature of the transaction, or as to the person dealt with or as to the subject-matter of the agreement, it cannot be said that they have agreed upon the same thing in the same sense. And if they do not agree in the same sense, there cannot be consent. A contract cannot arise in the absence of consent. If two persons enter into an apparent contract concerning a particular person or ship, and it turns out that each of them, misled by similarity of name, had a different person or ship in his mind, no contract would exist between them as they were not ad idem, i.e., of the same mind. Again, ambiguity in the terms of an agreement, or an error as to the nature of any transaction or as to the subject-matter of any agreement may prevent the formation of any contract on the ground of absence of consent. In the case of fundamental error, there is really no consent whereas, in the case of mistake, there is no real consent. Conclusion : As has been said already, one of the essential elements of a contract is consent and there cannot be a contract without consent.