Law of contract

CONSIDERATIONo
The mere fact of agreement alone does not make a contract. In law both parties to the agreement must provide consideration if the wish to sue on the contract, i.e. each party must do or promise to do something in exchange of the promise made by the other example if the promisor promises to mon the lawn of the promise, the promisor’s promise will be enforced as a contract by the promise if the promise has provided consideration. Consideration from the promisee might normally take the form of money but should consist of some other services which the promisor might agree the promise of the money payment in future is just as sufficient consideration as payment itself or the actual rendering of the service. Thus the promise must give something in return for the promise of the promisor in order to convert a bare promise into binding.

Consideration is what a promisor demands as a price for his promise.
In the case of DUNLOG PNEWMARK TYRE CO. V. SELTAGE LTD [1915] AC 845.
Lord Pollock, defines the term consideration as “act or forbearaunce of one party, or the promise thereof is the price for which the promise of the other bought and the promise that given for value is enforced.”

From the foregoing definition it is clear that the term consideration is used in the sense that of quid pro quo i.e nothing should go for nothing or something must be given.
In Tanzania the definition of consideration is found under section 2(1) (d) of the LCA which provides 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 to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise….”

What can be gathered in this section is that an act of abstinence which is to be a consideration for the promise should be done at the desire of the promisor, secondly that act or abstinence may be done by the promisee

CONSIDERATIONo
The mere fact of agreement alone does not make a contract. In law both parties to the agreement must provide consideration if the wish to sue on the contract, i.e. each party must do or promise to do something in exchange of the promise made by the other example if the promisor promises to mon the lawn of the promise, the promisor’s promise will be enforced as a contract by the promise if the promise has provided consideration. Consideration from the promisee might normally take the form of money but should consist of some other services which the promisor might agree the promise of the money payment in future is just as sufficient consideration as payment itself or the actual rendering of the service. Thus the promise must give something in return for the promise of the promisor in order to convert a bare promise into binding.

Consideration is what a promisor demands as a price for his promise.
In the case of DUNLOG PNEWMARK TYRE CO. V. SELTAGE LTD [1915] AC 845.
Lord Pollock, defines the term consideration as “act or forbearaunce of one party, or the promise thereof is the price for which the promise of the other bought and the promise that given for value is enforced.”

From the foregoing definition it is clear that the term consideration is used in the sense that of quid pro quo i.e nothing should go for nothing or something must be given.
In Tanzania the definition of consideration is found under section 2(1) (d) of the LCA which provides 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 to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise….”

What can be gathered in this section is that an act of abstinence which is to be a consideration for the promise should be done at the desire of the promisor, secondly that act or abstinence may be done by the promisee or any other person. Such act or abstinence may have already excuted or is in the process of being done i.e. promise to be done.
RULES OF CONSIDERATION
(2) Consideration may move from the promise or any other person. Although it is necessary that the consideration must move at a desire of a promisor as per section 2(1) (d) of the LCA. It may be supplied either by a promise on any other person.
This position can be illustrated in the Indian case of CHINAYYA V. RAMAYA [1881] ALL

In this case an old lady by way of deed transferred certain property to her daughter by the terms of a deed it was stipulated that an agreement payment of …………..should be paid to very year the plaintiff who was her sister, the defendant on the same day made in favour of the plaintiff an agreement to pay the same, the payment was however not paid and the plaintiff sued to recover the same. The defendant said that no consideration had moved from the plaintiff and therefore there were no valid contract. The court held that, the word promise or any other person. In section 2(d) of the Indian Contract Act, it is clear stated that, the consideration need not necessary move from the promise, it may move to any other person.

Under the common law consideration may be only supply by the promise, i.e. no stranger to the consideration can take advantage of a contract although made before his benefit as in the case of PRINCE V. EASTER [1833] 4
The defendant promised X that , if X did a certain works for him he will pay a some of money to plaintiff, X did the work but the defendant did not pay the money. The court held that the plaintiff didn’t sue the defendant because no consideration had moved from him to the defendant.

Furnishing consideration by itself does not entitle a person to maintain on the contract one has to show that he is the party to the contract.

(3) Consideration need not to be adequacy.
The court will not enquire in the  adequacy  consideration, by this is meant that they will not seek to measure the comparative value of the promisor’s promise and of the act or promise given by the promise in exchange for it nor will they denounce an agreement because it seems to be infair, thus if A promises to sell a torch. The adequacy of consideration does not render the agreement void.

In the case of THOMAS V. THOMAS
The plaintiff’s husband had expressed  the wish that if the plaintiff survived him he should have to use his house after the death of the husband, the defendant who was his executor agreed to allow her to occupy the house because of the husband wishes and on the payment by her of 1 pound the year. The court in declaring to be influenced by the husband wishes accepted that plaintiff’s promise to pay one (1) pound a year, was a good consideration on for the defendant promise.

The point to note. Where the party pleads coercion, undue influence or fraud in adequacy of consideration will be piece of evidence to be looked into; this is provided before under section 25(3) LCA, for consideration must be sufficient. It must be something which law attaches some value, therefore an agreement to do something which a part is already under obligation to do is void.i.e. being without competent consideration .

in the case of COLLING V. GODFREY, it was held when a witness who has received summons to appear at a trial. Has been promised payment then such promise to pay him is void for what of consideration because the witness is bound to appear and give evidence.
(5) Consideration must not be immoral, illegal or opposed public policy.
Section 25, 135 of the LCA; to see for exception for the requirement of consideration. 

TYPES OF CONSIDERATION
At Common Law, consideration may either be excutory, executed or past consideration.

EXCUTORY CONSIDERATION
Consideration is excutory where there is an exchange of promises to perform act in the future. Example in a contract for a sell of good ‘A’ promises to deliver the goods to be at the future date is by ‘A’ to deliver the goods in future date is the consideration for B’s promises to pay on delivery. This type of consideration is excutory one, similar the promise by (B) to pay on delivery is consideration for A’s promise to supply the goods in future date.

EXECUTED CONSIDERATION
Consideration is called executed when it is made in return for the performance of an act. Example, in a unilateral contract where A offer’s to pay 1000 reward for the return of her lost hand bag and return it to A, B’s acts of finding the bag and returns it to A is executed consideration.

PAST CONSIDERATION
If one party voluntarily performs an act and the other party then makes a promise, the consideration for the promise is said to be past consideration. Consideration is furnished before the promise.

EXAMPLE:
If A serves the life of B and B latter on promises to pay A, 500/=, the consideration for B’s promise will be regarded as past consideration, i.e. it has been executed before the promise has been made.

The general rule is that, past consideration is no consideration at all i.e. no valid contract can be created on account of past consideration and therefore it can not be used to maintain an action. Where consideration is past there will be no valid contract, i.e. neither part can enforce the agreement.

EXCEPTION TO THE GENERAL RULE
Past service done at the request of the promisor is while consideration, in the case of LAMPLEIGN V. BRATHWAIT [1615] HOB 105
It was held established that past act done at the request of the promisor will be whole consideration for the subsequent promise.

The fact of this case were that brathwait had killed Patrick Mahuma and had then asked lampleign to do only he could do to get pardon from a king. Lampleign did his best to obtain pardon from the king at, Brathwait promised to pay hundred pound to lampleign for his triable but he failed to pay the amount and lampleign sued him. In the court it was argued other things that, the consideration was past, but the court gave judgment for bampleign on the ground that his service had been procured by the previous request of the defendant.

POSITION UNDER LAW OF CONTRACT ACT
Words that have been used in section 2(1)(b) of the LCA suggests that consideration is an act…………or is presumed to be done in future, therefore in Tanzania consideration may be executed, excutory or in the process of being executed.

In Tanzania there is general rule to the effect that past consideration is whole consideration to support a subsequent promise, therefore the position of past consideration in Tanzania  is the same as that of common law i.e. past consideration is no consideration at all, however with respect the exeptiance of past consideration, section 25(1)(b) of the LCA is relevant. It leads that, an agreement without consideration is void unless it is the promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor or something……….

RULES AS TO CONSIDERATION
Consideration must be made at the desire of the promisor, the definition of consideration under section 2(1)(d) provide that, the act or abstinence which is to be regarded a consideration of the promise must be done or a consideration of the promise must be done or permitted to be done in accordance with the desire of promisor.

“….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 to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise….”

This position is elaborated in the Indian case of DURGA PRASAD V. BALDEO [1880] ALL 221
In this case, the plaintiff build certain shops in the market at the request of the corrector of the district, the defendant who letter on come to occupy the shops promised to pay to the plaintiff a commission on articles sold through their shops in consideration of him having expended money in the consideration of him having expended money in the construction of him having expended money in the construction of the shops, however the defendant failed to pay for commission and the plaintiff sued to recover the same.
In dismissing the plaintiff’s action the defendant, the court held among other things that, the money was not spent by the plaintiff at the request of the defendant but voluntary for a third party and thus the contract was void.

BOOK OF AVATAR SINGH
PAST AND EXECUTED CONSIDERATION
Past consideration always consists of an act done without any promise, but executed consideration means an act which has been done in response to a positive promise, where for example, a reward is offered for finding a lost article, the offer can be accepted only by producing the article to the offeror and that is also a consideration for the promise.

Executory consideration, may consist an act which has already been or is in the process of being done. It may also consist of an act which is only promised to be done at some future time.