Harmonizing to the legal lexicon, consideration is average that something done or given by one party for the act or promise of another. Consideration is an of import component to make of contract and must ensue from bargaining by the parties. Consideration have three types, there are executory, execute, and past consideration.
Executory consideration is a contract can be made on the footing of exchange of promises into future action, such as to pay for the goods in the hereafter or to provide when the goods available[ 2 ]. Executed consideration is the promise becomes enforceable because the offeree has really performed, covering will be terminals instantly. Past consideration is something that has already performed, after promise to pay for it can non enforceable.
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The Factor Affecting the Court ‘s Decision in the Findingss of Consideration
The Orthodox position is that, public presentation of an bing responsibility should non represent consideration. Performance of an bing responsibility should or should non represent consideration that is depending on the instance. To establish out some of the instances, there have some support public presentation of bing responsibility should represent consideration and should non to represent consideration.
First, public presentation of public responsibility can non be consideration for a promised wages[ 3 ], such as instance of ( COLLINS v GODEFROY ( 1831 ) ) . The tribunal is said that “ subpoena Collinss to look at tribunal is a legal responsibility, so Collins making so was non consideration that could back up Godefroy ‘s promise ”[ 4 ]. Whereas, if a promise does more than promisee responsibility, promisee is entitles to claim on the promise[ 5 ], for illustration, ( GLASSBROOK v GLAMORGAN CC ( 1925 ) ) . Appellants ‘ director refused to pay sum to patrol that is police responsibility to protect and to forestall offense. The understanding was non null as being against public policy. If the constabulary had done more than their public responsibilities demanded and need to be paid for constabulary. The tribunal said that “ constabularies have general responsibility, they need to maintain the peace and prevent offense, so that no was consideration, but need to pay excess for constabularies because the constabulary hold given them excess protection. ”[ 6 ]
Second, public presentation of contractual responsibility[ 7 ], this regulation is the public presentation of bing contractual responsibility owed to promisor, can non be consideration for a new promise[ 8 ], for illustration ( STILK v MYRICK ( 1809 ) ) , where the tribunals ruled that “ The promise of excess rewards was non enforce because there was no consideration for the promise. ” The staying members of crew had done merely what they were bound by the original contract. They do non hold to done excess work for the proprietor. So, proprietor need non to pay crew excess rewards[ 9 ].
To compare instance with HARTLEY V PONSONBY ( 1857 ) , there can see this instance is to back up should represent a consideration. In the instance of HARTLEY v PONSONBY ( 1857 ) there have mentioned the captain have had to assure the crew, if they would assist to sail the ship back to England, so will give the excess money to them. The crews have a duty to work on the ship, but they have non responsibility to sail the ship back to England. The tribunal was said that “ the individual who promise to give excess money for crews to sail ship back to England, so will give the crew excess money ” . The crews cut down the hazard to sail on and captain had no right to demand it[ 10 ].
And in instance of WILLIAMS v ROFFEY BROS ( 1990 ) , there have to shown public presentation bing responsibility should represent a consideration. Court of the entreaty said that “ farther promise might be consideration for contractor ‘s offer of excess money to sub-contractor in order to motivate completion the refurnish[ 11 ]. ” To accepted this public presentation because public presentation of bing contractual responsibility provide consideration for a new promise in state of affairs there is no inquiry of fraud or duress and the promiser receives practical benefits[ 12 ].
As a valid consideration, consideration must non be past, public presentation must be legal and public presentation must be possible[ 13 ]. Besides that, consideration must travel from the promisee but need non travel to the promiser[ 14 ], for illustration ( TWEDDLE v ATKINSON ( 1861 ) ) , Guy promised the complainant ‘s male parent to pay complainant pound200 if the male parent have to pay complainant lb 100, the consideration is move to the suspect, which mean is move from the complainant, complainant had non provided any consideration in return for the promise to pay him lb 200, so the complainant to action was no consequence[ 15 ].
In add-on, consideration must be sufficient but need non be equal[ 16 ], such as ( THOMAS v THOMAS ( 1842 ) the widow can to hold the house because the testate is wish to given to the widow, $ 1 was valuable consideration traveling from the widow, and upheld the contract. Constitute a valid consideration is made by the contract between parties. Anyhow, the best consideration and to be safe side still is money[ 17 ].
In my sentiment, consideration should represent in public presentation of bing responsibility because that can in return to the promise if the promises are legal and possible. As can to see the instances of related consideration, in traditional position that is non support public presentation of bing responsibility should represent a consideration, and really that is depend on the instances.
Harmonizing to the instances between COLLINS v GODEFROY ( 1831 ) and GLASSBROOK v GLAMORGON CC ( 1925 ) , there have show that why some instances are support public presentation of responsibility should represent a consideration or non. As in instance of COLLINS v GODEFROY ( 1831 ) , it is non support public presentation of responsibility should represent a consideration because to subpoena informant is non a responsibility that is a public presentation of public responsibility. Contrary, the instances of GLASSBROOK V GLAMORGON ( 1925 ) the plaintiff in error ‘s trough should to pay for constabulary because they require more protection for them, and the constabulary have to give them extra protected. The constabulary have done some out of their responsibility, so need to pay excess money for them.
In the instance of STILK v MYRICK ( 1809 ) and HARTLEY V PONSONBY ( 1857 ) , the different between this two instance, can see that the different because same is contractual responsibility but in instance of HARTLEY v PONSONBY ( 1857 ) suspect demand to pay for crew excess money because of captain have to assure the member of crew, if they can safe and sail the ship back to England so will give them excess money and the crews was worked out of the contract work because 19 crews have to work 36 crew occupation. Numbers of the crew work in the ship are non balance. They were worked out of their capable. Whereas, in instance of STILK v MYRICK ( 1809 ) proprietor was need non to pay the excess money for the member of crew. That is because of the consideration, in the instance of the STILK V MYRICK ( 1809 ) there have non any consideration for the proprietor, if the crew have to done any excess work for the proprietor, possibly the excess money will give them. And the crews merely need to make two more crew merely, the remainder to cover other two crew ‘s occupation ; it is non truly work hard.
In decision, as can see that in inquiry, public presentation of responsibility should represent a consideration because the instances are shown and turn out that public presentation of bing responsibility can to represent a consideration if the promise or offer is legal and possible. However, in my sentiment, public presentation of bing responsibility should represent a consideration if that is legal and possible.
What are the general rules in the formation of a contract? What are the assorted signifiers of redresss available for a breach of contract? Give illustrations with instances.
Introduction: What is Contract?
Contract is everything in written for the promise or offer. When signed the contract must adhere what the contract have written. If the contracts are non in legal, it may be revoked. For illustration, the individual signed the contract is non willing to subscribe, it may be revoked. Contract is to protect the promise, or offer.
General Principles in the Formation of a Contract
General rules in the formation of contract has an indispensable elements of adhering contractual understanding, there are offer, credence, consideration, and purpose to make legal dealingss. These elements must all be present in order to do a contract.
Offer is a promise, and can be acceptance or non, to be bound on peculiar footings[ 18 ]. An invitation to handle, ask foring other to do offer, can non be accepted as in signifier a contract, and besides the individual can non to widen the invitation to jump accept to any offer made to them, illustration ( FISHER v BELL ) display the arms in the window store[ 19 ], although the arm do non hold to expose the monetary value on the arm but it is ask foring client offer to purchase it[ 20 ]. Offer to peculiar group of people[ 21 ], an offer is made to peculiar people ; it can be accepted by anyone, such as ( CARLILL v CARBOLIC SMOKE BALL CO ( 1893 ) ) offer certain people to devour their merchandise, and on the newspaper the province that have put the $ 1000 in the bank if the medical inefficient to return $ 100. Offer the opportunity to certain people who have to devour these types of merchandise[ 22 ]. There are three types of offer, one-sided offer, bilateral offer, and counter offer. These three types are really usually, and can to utilize it on our life. Unilateral offer is offer to whole ; the individual who might non cognize each other. Bilateral offer is between two people and might hold to who the individual want to sell or purchase. Counter offer is the individual who offer can to reject the original monetary value when the purchaser deals, to offer the new monetary value.
Acceptance of an offer is a concluding and creates a contract, must suitable to the footings of the offer. Some of the ways are considered as credence, there are signifier of credence, and communicating of credence. Form of credence is acceptance through the signifier instance of words to show, either spoken or written[ 23 ], even can be an action or behavior ( BROGDEN V METROPOLITAN RAILWAY CO ( 1877 ) ) the tribunal said that “ mere mental acquiescence to the contract would non hold been adequate, but both parties acted upon it were plenty to demo credence of its term from completion foremost bringing. ”[ 24 ]Communication of credence[ 25 ]is must hold communicated between offerer and offeree. Silent is non to acceptance[ 26 ], in the instance of ( FELTHOUSE v BINDLEY ( 1863 ) ) . Although the uncle says non voice out is consider accept it offer that is one side to carry on the promise. There was no contract and no credence had of all time taken topographic point[ 27 ].
Consideration is an of import component to make of contract and must ensue from bargaining by the parties. Executory consideration is a contract can be made on the footing of exchange of promises into future action, such as to pay for the goods in the hereafter or to provide when the goods available[ 28 ]. Executed consideration is the promise becomes enforceable because the offeree has really performed, covering will be terminals instantly, and for illustration, purchaser and marketer are done the trade instantly. Past consideration is something that has already performed, after promise to pay for it can non enforceable. For illustration, the offeree is consumed the offer and the offerer has already supply the offer, after that promise to pay, but it to pay for unenforceable.
Purpose to make legal dealingss have two understandings, there are domestic and societal understanding, and commercial understanding. Domestic and societal understanding is given the parties do non mean to make legal dealingss[ 29 ], the instance of ( BALFOUR v BALFOUR ( 1919 ) ) no legal contract because hubby and married woman did non mean legal for their understanding[ 30 ], and grounds can refute the given[ 31 ], such as ( MERRITT V MERRITT ( 1970 ) ) , the hubby has use the BALFOUR v BALFOUR instance to said that hubby and married woman agreement non being understanding. But the married woman got the house because have grounds to turn out, such as hubby wrote that understanding, married woman to paid off the mortgage[ 32 ]. Commercial understanding is presumed in instance affecting commercial understanding[ 33 ]( EDWARDS V SKYWAYS ( 1964 ) ) . The tribunal said that “ the promise and understanding had no legal consequence because there was no purpose to come in legal dealingss. ”[ 34 ]
Purpose to make legal dealingss
Offer + credence
Assorted Form of Remedies Available for a Breach of Contract
Breach of contract is the public presentation out of the promise, non correspond to the promise. Normally, breach of contract is might presenting unreasonable clip, incorrect day of the month, and incorrect reference, and so on to do it happened. Have assorted signifier of redresss available for a breach of contract, there are amendss, specific public presentation, injunction, recission, and damages.
Damagess are person required to counterbalance when injured by breach of contract. Largely compensate is money. Harmonizing to the jurisprudence, the party who has suffered by the breach of contract, they can to claim compensate for any loss or amendss. In the instance of HADLEY V BAXENDABLE ( 1845 ) , the complainant claim for the amendss failed because two grounds, there are the Millss arrest without shaft was a natural effects, and should hold state the state of affairs of the Millss. But the complainant do non to state the bearer, so plaintiff claim for amendss was failed[ 35 ]. In the instance of PAYZU V SAUNDERS ( 1919 ) , there is responsibility to extenuate losingss because when the complainant tardily the wage the installments, the suspect was refused to present the goods to complainant.[ 36 ]
Damagess can assist the individual who injured by the breach of contract can to necessitate just compensate. As the instance of HADLEY V BAXENDABLE ( 1845 ) can non claim the amendss because the amendss was natural, factory can non work because of shaft, and factory should hold a trim shaft for replace the other shaft. So, the amendss failed.
Specific public presentation is an just redress, the tribunal direct to implement in the contract. It is non available of right and given description of the tribunal. Court order necessitating public presentation specified in the contract, it must public presentation when the contract has necessitating[ 37 ]. Specific public presentation will non be allowed the tribunal can non command its enforcement,[ 38 ]in the instance of RYAN v MUTUAL TONTINE WESTMINSTER CHAMBERS ACCOSIATION ( 1839 ) . A rental of service level, lease giver should supply a porter to invariably in attending. But the tribunal presumes that changeless supervision in such instance declined to give. Can non to hale to implement the public presentation, the public presentation must hold contract[ 39 ].
In my sentiment, specific public presentation is the individual who are necessitate you to make so you need to make for them if have signed contract for it. Of class that is non everything must make for them, at least that is in the contract, non out of expect.
Injunction is an order of the tribunal to halt public presentation, when a individual to interrupt their contract. Injunction can consequence of indirectly implementing contracts for personal service[ 40 ]WARNER BROS V NELSON ( 1937 ) the suspect might injunction by the complainant, because suspect can non to public presentation in forepart without complainant.[ 41 ]And the instance of LUMLEY V WAGNER ( 1852 ) because of the injunction, the suspect can non to sing elsewhere or to anyone. Defendant merely can to sing during plaintiff consent. The tribunal states that “ they had no power to do the suspect sing or promote her to sing at the complainant ‘s theater. ”[ 42 ]
Injunction is person does non desire the other to execute, if the individual non listens to person else, so to use the injunction to halt them to make it. Of class, to use an injunction must hold person has to ache you on belongings or organic structure so you merely can to use it to protect you. In these two instances at that place have show both suspects was controlled by the complainant because the injunction. So, they need to execute when complainant during at they around. But the tribunal states that suspect can execute, even the complainant non around at that place because suspect demand to gain money for life.
Recission is both sides are executed from public presentation when contract is canceled. If non public presentation in future, so might can to action them. For illustration, non execute yet but signed contract already, if the provider provide the goods is out of the contract, and so can to action them. The instance of LEWIS TURNER v LINDA TURNER, Linda breach of contract, Lewis claim that recission, the amendss and recission is incapable to ciphering, but harmonizing to Lewis, he want claim the sum $ 75,00, but grounds was non support Lewis circumstance and fact. At the terminals, the judgement was contrary because the grounds of the Lewis amendss and recission was non support.[ 43 ]
Recission is similar with amendss, amendss are to necessitate the loss, and recission is to pay for loss. Damages is the claimant semen and ask for the amendss, whereas, recission is to pay them money for redress breach of contract. As the instance of LEWIS TURNER v LINDA TURNER, Lewis is claim recission because Linda breach of contract, luckless, he can non claim the recission because non sufficient for grounds.
Finally, to do a contract at that place must hold offer, purpose to make legal dealingss, credence and consideration so merely can to do a contract. Redresss for breach of contract, there are amendss, specific public presentation, injunction, and recission. These are the redresss when breach of contract, those can assist to protect the complainant, even can to protect suspect.