LAWFUL CONSIDERATION AND OBJECT- MEANING, DEFINITON, ESSENTIAL ELEMENTS, UNLAWAFUL CONSIDERATION AND STRANGER CONTRACT

 INTRODUCTION

·        Consideration is necessary for the formation of contract. Section 10 of the Indian Contract Act 1872 provides, “All agreements are contracts if they are made by the free consent of the parties and competent to contract, for lawful consideration and with a lawful object and are not hereby expressly declared to be void.

·        Section 25 of the said Act lays down the general rule that "an agreement without consideration is void.



MEANING OF CONSIDERATION:

·        Consideration is necessary for the one formation of a contract. It means "something returns".

·        It is the price paid for contract. It must be Lawful. A contract without consideration is void.

DEFINITION OF CONSIDERATION

(a)  Pollock: According to Pollock Consideration are the price for which the promise of the offer is brought, and the promise thus given for value is enforceable.

(b)  Blackstone: According to Blackstone consideration is the recompense given by the party contracting to the other. It is the price of the promise.

ESSENTIAL ELEMENTS OF CONSIDERATION

·        Consideration must move at the desire of the promisor: It is the essential that consideration must move at the Desire of the promisor, but not at the instance of a third party. An act done at the Desire of a third person will not constitute a good consideration within the meaning of section 2 (d) of the Indian Contract Act 1872.

·        Consideration may move from the promisee or any other person: A party who wishes to enforce a contract must be able to show that he himself has furnished consideration for the promise of the other party. In English law, consideration must move from promise only. But in Indian law it may move from promise to any other person.

·        Consideration must be real not illusory: Consideration must be real and possible. It must not be illusory or unsubstantial.

·        Consideration may be paste, present or future: The words used in the definition under section 2(d) of the Indian contract Act, clearly state state that, consideration may be past, present or future.

·        It must be Lawful: Consideration must not be illegal it must be Lawful.

·         It must not be immoral or opposed to public policy: Consideration must not be immoral for opposed to public policy

·        Past, Present, and Future Consideration:

Examples Past consideration involves something that was already given before the contract was signed. It's sometimes called executed consideration.

For example, a person finds a lost wallet and returns it to its owner who promises to pay $100 in one week. The return of the wallet thus constitutes past consideration.

Present consideration, most commonly cash in exchange for goods, is given at the time the promise is made. If you buy groceries for cash, the cash is your consideration, and the groceries are the consideration given by the store. This is a contract even though it is not spoken or written.

Future consideration will be given after the contract is formed.

For example, you order a product online that will be delivered in one week. The product is payable when it is delivered.

AGREEMENT WITHOUT CONSIDERATION EXCEPTION

Consideration being one of the essential elements of a valid contract, the general rule is that “an agreement made without consideration is void.” But there are a few exceptions to the rule, where an agreement without consideration will be perfectly valid and binding.

 

These exceptions are as follows:

1.     Agreement made on account of natural love and affection [Sec. 25(1)]:

An agreement made without consideration is enforceable if, it is

 (i) Expressed in writing, and

(ii) Registered under the law for the time being in force for the registration of documents, and is

(iii) Made on account of natural love and affection,

(iv) Between parties standing in a near relation to each other. Thus there are four essential requirements which must be complied with to enforce an agreement made without consideration, as per Section 25(1).

 

2. Agreement to compensate for past voluntary service:

A promise made without consideration is also valid, if it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or done something which the promisor was legally compellable to do.

(a) A finds B’s purse and gives it to him. B promises to give A Rs 50. This is a contract.

 (b) A supports B’s infant son. B promises to pay A’s expenses in so doing. This is a contract14 (Note that B was legally bound to support his infant son.)

(c) A rescued B from drowning in the river, and B, appreciating the service that has been rendered, promises to pay Rs 1,000 to A. There is a contract between A and B.

 

3. Agreement to pay a time-barred debt: Where there is an agreement, made in writing and signed by the debtor or by his authorized agent, to pay wholly or in part a debt barred by the law of limitation, the agreement is valid even though it is not supported by any consideration. A time barred debt cannot be recovered and therefore a promise to repay such a debt is without consideration, hence the importance of the present exception.

 

4. Completed gift: A gift (which is not an agreement) does not require consideration in order to be valid. “As between the donor and the done, any gift actually made will be valid and binding even though without consideration” [Explanation 1, to Section 25]. In order to attract this exception there need not be natural love and affection or nearness of relationship between the donor and done. The gift must, however, be complete.

 

5. Contract of agency: Section 185 of the Contract Act lies down that no consideration is necessary to create an agency.

 

6. Remission by the promisee, of performance of the promise: For compromising a due debt, i.e., agreeing to accept less than what is due, no consideration is necessary. In other words, a creditor can agree to give up a part of his claim and there need be no consideration for such an agreement. Similarly, an agreement to extend time for performance of a contract need not be supported by consideration.

 

7. Contribution to charity: A promise to contribute to charity, though gratuitous, would be enforceable, if on the faith of the promised subscription, the promisee takes definite steps in furtherance of the object and undertakes a liability, to the extent of liability incurred, not exceeding the promised amount of subscription. Stranger To Contract The expression “Privity of Contract” is a doctrine, which means stranger to a contra.

 

STRANGER TO CONTRACT

The expression “Privacy of Contract” is a doctrine, which means stranger to a contract. It means that a person, who is not a party to the contract, is deemed to be a stranger to the contract, means the relationship subsisting between the parties who have entered into contractual obligations, and implies a mutuality of will and creates a legal bond between the parties.

 

 STRANGER TO CONSIDERATION

Stranger to consideration or contract cannot bring a legal action, Indian law is quite different. Section 2(a) of the Contract Act while defining ‘Consideration’ includes the words ‘the Promisee or any other person’ and that clearly shows that a stranger to consideration can sue. Therefore it is clear that a person other than a party to the contract can provide the consideration.

 

UNLAWFUL CONSIDERATION AND OBJECT

 1.     Forbidden by Law:

Where the object or the consideration of an agreement is that the performance of an act which is forbidden by law, the agreement is void.

Acts or undertakings forbidden by law are those punishable under any statute also as those prohibited (expressly or implicitly) by special legislation of Parliament and state legislatures.

For example, the assembly or sale of excisable articles is prohibited under the Excise Act except upon a Government license. Sale of liquor without a license is prohibited for this reason under the Excise Act and is, therefore, illegal.

To summarize, all agreements involving breach of laws enacted for the protection or promotion of public interest are void.

2       Defeat the purpose:

Of Provisions of any Law Though the thing or consideration for the agreement, sometimes indirectly forbidden by law, they’re still forbidden if nature defeats the aim of the provision of law. Agreement with such an object or consideration is void. Where a legislative enactment provides penalty for an act or promise, the performance of such an act or promise would amount to the defeat of that enactment, because it is implicit that the statute intends to forbid that act

3.  Fraudulent: An agreement, the object of which is to defraud others is void. Where the parties comply with practice a fraud on a 3rd person, not a celebration to the contract, their agreement is unlawful and void. To render an agreement unlawful and void on the idea of fraudulent object or consideration, the fraud, must, however, be established beyond reasonable doubt.

 

 4. Injurious to Person or Property: Any agreement that suggests or involves injury to person or others property, it’s deemed unlawful and thus void. it had been held that the contract was void since the promise contained within the bond was tantamount to slavery on a part of the defendant, which is both injurious to an individual also as illegal.

 

5. Immoral: If the object or consideration of an agreement is against morality, its void. The subsequent examples would help understand the purpose better.

 

 6. Agreements against Public Policy: The term public policy during a wider sense means restriction of freedom of persons from doing something within the larger interest or for the great of the community. Within the context of the Indian Contract Act, it restricts the liberty of persons to accept certain areas that are detrimental to public policy.

 An agreement is void if the law regards it as against public policy.

a) Trading with an alien enemy

b) Interference with administration of justice

c) Marriage brokerage agreements

d) Trafficking publicly offices

e) Unfair or unreasonable dealings

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