What is Constitute Consideration
Consideration is a necessary factor that for the information in the contract. It consists of a promise to carry out a desired act or a promise to refrain from doing an act that one is legally entitled to do. In the traditional way, the courts has familiar between unilateral and bilateral contracts to determining whether that are from one or both parties to provide the consideration and what point they will provided in the consideration. A bilateral contract was said to the both parties the minute the parties to exchanged promises, from the each promise were from the sufficient consideration in itself.
What is Constitute Consideration?
Consideration is one of the three essential elements of a valid contract. A promise is made without consideration; it does not constitute a valid contract and cannot be enforced in law. Only the contract that has valuable consideration is a valid contract. In a common promise unconfirmed by consideration is not a binding contract. A promise is give without consideration but is intended by the parties to affect an existing contract between them which has been acted upon by one party, and then such promise may be used as a defense by the party to enforce the existing contract. Valuable consideration has been defined as some right, interest, profit or benefit accuring to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other at his request.
Constitute consideration is can be an anything of value such as an item or services, from the each party to a legally-binding contract must agree to exchange if the contract is to be valid. For example, on one side party offers consideration, the agreement is not legally a binding contract. In another way, the arrangement consists of a promise which is not supported by consideration; the arrangement is not a legally enforceable contract.
What is the factors affecting the court’s decision in the findings of ‘consideration’ in relation to performance of an existing duty?
The Performance of an existing duty
An authority has a general duty to do, but when an individual desires special service which the authority is not obliged to carry out but the authority can effectively carry out such service, then the authority may “lend" the service for that purpose in consideration of payment. A party is under a legal duty or an existing duty to carry out an obligation. It can’t be sued for any some promise. An alternative, party will refuse to pay this for service rendered in relation to his existing duty. In addition, if an individual desire some special service from a not within his duty, the party may “lend" such service in consideration of any payment.
There have 2 Domestic cases in the existing duty. There are Balfour v Balfour (1919) 2 KB 571, CA, and Merritt v Merritt (1970) 2 All ER 760, CA.
The case of Balfour v Balfour (1919) 2 KB 571, CA means that his wife that can’t follow him to England because of some medical problem, and promise her to pay an allowance to her £30 per month until she could meet him. The wife sought an enforce husband to promise. There is two parties to agree when walk together, or where there is an offer and an acceptance of an agreement. There is nobody was suggested that an ordinary circumstances that those agreements in result know as a contract, and one of the most usual forms of agreement which does not constitute a contract appears to be the arrangements that are made between husband and wife. At the last, the court said there are no consideration in the promise and no contract with her. Agreement are outside the realm of contract altogether.
The second case there are Merritt v Merritt (1970) 2 All ER 760, CA. The case said about a husband and wife already separated, before they separated they are jointly owned a house. After that, the husband was lived with another woman. The husband was promised the wife that he will pay her £40 per month; they had made the agreement that consideration paying off the mortgage on their join house and transfer the house to the wife’s name. In the court, the judgment said this was a legally enforceable contract and which they were placed and ask people whether reasonable would regard this agreement to be binding. It is a natural of the dealings, and the fact that the Mr Merritt was separated when they sign the contract.
In my opinion, in the performance existing duty in this two domestic cases are between Balfour v Balfour (1919) 2 KB 571, CA, and Merritt v Merritt (1970) 2 All ER 760, CA. I disagree the Merritt v Merritt (1970) 2 All ER 760, CA. case because the husband should paid his wife for mortgage in £40 transfer the house to the wife’s name. It can’t success because they are no contract with them. Therefore the court assumes that there was more than a domestic arrangement.
There have 2 Commercial cases in the existing duty. There are Ward v Byham (1956) 2 All ER 318, CA and Combe v Combe (1951) 1 All ER 767, CA.
In the case, Ward v Byham (1956) 2 All ER 318, CA. In February, 1955, it has a claim for the sum of ￡1 per week to respect a child. The father and mother were lived together for four or five years, and a little girl was born. While the father and mother were living together, the father while when to the work and maintain the household, but the father turned the mother out. He put the child into the care of a neighbor and paid the neighbor ￡1 per week. Meanwhile, mother work as a housekeeper to a man. The mother wanted the child to be together with her and she wrote a letter to the father for asking the for the child and ￡1per week for safeguarding which was the money from the father to the neighbor. At the last, mother bring this action to claim from the father should pay her ￡1 per week, even though she has married. The court said that they could not find any consideration for the pay maintenance. There was no constitute consideration for the promise.
The second example is Combe v Combe (1951) 1 All ER 767, CA. This case said about Mr and Mrs Combe a pair of married couple. Mr Combe promised Ms Combe that he would pay her yearly maintenance. Mr Combe refused to pay yearly maintenance he had promised. After seven years, Ms Combe brought an achievement against the Mr Combe to have the promise obligatory. In the formed promise and no contract there was no consideration to exchange it. In its place, she was arguing to the promissory as she was act on the promise to the own loss. The court was agreed with Mrs Combe, he was enforced the promise under promissory. In this case, the court cannot find any consideration to and promise going to pay their maintenance. At the end, even if his wife had promised to not apply to court for maintenance, but there would have been no consideration between them because no one can give up the legal right to apply for their maintenance.
In my opinion, in the performance existing duty in this two commercial cases between Ward v Byham (1956) 2 All ER 318, CA, there is consideration, and Combe v Combe (1951) 1 All ER 767, CA, there is no consideration. I agree that the Ward v Byham (1956)2 All ER 318, CA cases. The cases talk about the father D should pay the mother P because he had promise the offered to pay her £1 every week to take care and look after the child. After few time, the father D was stopped to paying her that the £1. It obtained that there is not a legal benefit.
It is to clear that when one party has a legal or existing duty to perform certain obligation, there is no consideration. However, if he or she has done something extra which he or she is not obliged to do so under his/her obligation upon request by another party, then there is a constitutes consideration and is enforceable in law.
In the conclusion, there have many contracts from different people, contract there have a position but beside the contract there have to do extra work. I learn many different cases such as: Thomas v Thomas (1842) 114 ER 330, QB , Re McArdle (1951) 1 All ER 905, CA, Collins v Godefroy (1831) 109 ER 1040, KB, Lampleigh v Braithwait (1615) 80 ER 255Ward v Byham (1956) 2 All ER 318, CA, Combe v Combe (1951) 1 All ER 767, CA from different places and years. It teaches us when agree something, must have consideration in the contract. After I had study all the case, the I knew that the final decision is from the judge’s which has been raised in a trial or a court hearing, it presented orally by the judge in the court, but they are often to contained in a written judgment in support of his or her as an award of the damages.
The above diagram show how the contract is form. To the law requires that there must be offer, acceptance, and intention to create legal relation between the parties. The law of contract is found in case and in several statutes. The principal statute dealing with contract is the Contract Act 1950 which is re-enactment of the Contract.
A proposal is known as an offer, it is made when one person signifies to another his or her willingness to do or to abstain from doing anything, with views to obtaining the assent of the other to the act of abstinence. A proposal is thus to define to promise by the promisor to be bound. Where a promise signifies his or her assent to the proposal, this is an acceptance of the proposal and when an acceptance becomes a promise.
What is offer, acceptance, intention to create legal relation and consideration?
An offer is an expression of willingness us to be bound by the term of the contract. It can be made to be one person or to the group of person. By a lateral offer can take to be form a promise to do something in the return for the promise of the offeree to do something.
In the cases of Carlill v Carbolic Smoke Ball Co. The case was said the makers of a health product which published an advertisement in the newspaper to promising to pay £100 to anyone who contracted flu after buying one of their smoke balls and using it as the directed. P bought a smoke ball and used it as directly and still caught the flu, she sued for the £100 promised. The court of appeal was said that the advertisement in this case was an offer, the wording of the advertisement is clearly showed an intention to be bound to anyone who accepting.
Invitation to treat also will happen in the offer to receive an offer. The price was tag on an item displayed in the shop it is an invitation- to – treat and not an offer of sale.
In the of Fisher v Bell (1960) 3 All ER 731, DC it said that there are concerning the requirements of an offer and acceptance in the information of a contract. The case was established that, where a good are displayed in the shop with a price label, this called an invitation to treat by the seller and not an offer. There is an instead made when the customer presents the item to the cashier together with the payment. This is an acceptance occurs at the cashier takes the payment. These cases are not an offer but are an invitation to treat.
An acceptance is a mental assent as to the terms stated in the proposal would not be terms stated in the proposal could not be sufficient or binding. When constituted an offer has been made by one party and accepted by the other, then there is agreement at the moment of acceptance or, more precisely, at the moment of communication of acceptance.
For example, Felthouse v Bindley (1863) 142 ER 1037, Exch Ch this case said that there was interested in buying a horse and had discussed with his nephew to purchase a horse belonging to him. There was a misunderstanding about the price, as a plaintiff he believed he had purchased the horse for £30, and the nephew the horse was sold for 30 guineas. He stated that in the letter he assumed the horse was £30.15 for him, if he did not receive a response from his nephew. They allowed the horse to be put up and sold it. Lastly, he sued that defendant for the damages for conversion. In the court, there was no contract with them and it was an open offer that had not been acceptance.
Intention to create legal relation (I.T.L.R) is a contract in a common intention of the parties to enter into a legal obligations, it is a mutually communicated expressly or impliedly. Assume that it is a contract between relationships, with a commercial agreement.
In the cases of Merritt v Merritt (1970) 2 All ER 760, CA show that a separated husband and wife cases. There was a parties are divorced, separated or in the process of separating, the negotiation do not take place in the context of natural love and affection therefore is no room left for the application of such a presumption and in the court will generally find the request contract intent existed.
Consideration is a general promise with a contract but it is not a binding contract. A contract that not made under seal it is supported by a valuable consideration. Consideration is an action that thinks before make some decision, and it must be something very important with it.
In the cases of Chappell v Nestle (1959) 2 All ER 701, HL show that Chappell was the owner of a musical copyright, and Nestle as a part of a promote to offer to records featuring this tune in exchange for 6d(71/2p) and three chocolate wrappers. It is an action to recover royalties, whether the wrappers were part of that sale price. The House of Lords said they were a contracting party can stipulate for the consideration of the chosen and the peppercorn does not cease to be a valuable consideration it just to promise intends to throw it away.
What are the remedies available for a breach of contract?
The remedies that available for a breach of contract are:
Rescission of contract
The rescission of contract is a site by one party but it brings only future obligation to an end to allow the party to sue the damages for the breach of contract. It also can define as cancellation of the contract. If there is a one party, it can’t success except there is both parties can be placed in the same situation it only can stand upon the same terms as existed when the contract was made.
In the case of Cooper v Phibbs (1867) LR 2 HL 149. This cases was said about an uncle was told his nephew not to intending to mis-represent anything but being in a fact in the error, the uncle was entitled to a fishery. Actually, the fishery was belonged to the nephew himself. Lastly, the court was said the house of Lords was set the agreement aside on the term of the defendant should in a lien on fishery for such money as the defendant had expended on its improvement.
Damages are for any consequence of the breach of contract. In the court, it generally sum that would restore the injured party to the economic position this is they expected from the performance of the promisee or the promisor.
In the case of Anglia Television v Reed (1972) it said about the plaintiff was entered into a contract with defendant for the defendant to act in a film which the plaintiffs. Since the plaintiff could not find a replacement in time, they had to abandon the project and sued for breach of contract. They did not claim for the loss of profits which they had made on the film and the profit would not be too speculative in the sense that cannot be establish with any certainty.
Specific Performance is an equitable remedies where the court to direct to a contract. It is an opposed to damages, its attractive but exceptional remedy when a unique thing has been sold to another party. The parties will refuses to honor his or her end of the bargain.
In the case of Walters v Morgan (1861) 3 DF & J 718, this case is about the defendant agreed that to grant the plaintiff a mining lease over the land that he just bought. It was refused as the plaintiff had produced a draft lease and induced the defendant to sign it, after the sign the agreement in an ignorance of the value of the property. The plaintiff had to hurry the defendant to signing the lease before he knew the property value.
Injunction is might be obtained to prevent a copyright from a reprinting copyrighted materials. In the court they restrains one of parties to suit in equity from doing or permitting who are under his control to do an act which is unjust to another party.
In the case of Lumley v Wagner (1852) 1 De GM & G 604 shows that the defendant of the contract to sing for the plaintiff in his theatre for three month elsewhere during the time without the plaintiff’s consent. The third party offered the defendant a larger sum to sing for him. Lastly, the court said they had no power to make the defendant to sing or encourage her to sing at the plaintiff’s theatre, and could persuade that to do so by the preventing her singing elsewhere by imposing an injunction to that effect.
Restitution is a standard remedy for the breach of contract and return of a specific property and the monies paid. This means that a party who has entirely in his site of the contract and not receives any agreement in the counter performance in sometimes and be entitling to restitution in respect of his own performance.
In the case of Planche v Colburn (1831) 8 Bing 14 131 ER 305 shows that defendants had commenced a periodical publication, and had engaged to the plaintiff to write for upon costume. They are willing to complete and deliver the whole insertion in the publication but the defendants did not publish it there, and refused to pay it. The sum of £1001which they had previously agreed he should receive it. There was the common counts for the labour and workers.
In the conclusion, I had learned that contract should come with the offer, acceptance, intention to create legal relationship (I.T.L.R), and consideration. After I finish my assignment it was clear about the contract. I also learned what are the various form are available in a breach of contract.
When studying law, it really helps a lot in the future when we doing a business, and to reduce the risk and mistake for the company and we will know what to do when facing the problem.