BetterLawNotes-5 (2)

CONTRACT LAW

Consideration is the promise or other act or omission requested by the promisor in return for his promise. Consideration is the ‘price’ which a promisee pays in order to be able to enforce the promise.

‘An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable.’ Pollock on Contracts (8th edn) 175 approved by Lord Dunedin in Dunlop v Selfridge [1915] AC 847, 855.

Say that A promises to pay B £1,000. Relying on the promise B goes out and buys a new computer. A later changes his mind and refuses to pay. Can B enforce the promise? Has he provided consideration by relying on the promise and purchasing the computer? Although, one may think that B ought to be able to enforce A’s promise given his reliance on it, the promise is unenforceable as it lacks consideration: reliance on a promise is not enough. Buying the computer does amount to consideration because A did not ask B to buy a computer in return for the promise of £1,000.

Combe v Combe [1951] KB 215

The parties, a married couple, had separated. The husband promised to pay the wife an annual sum of £100 but no payment was ever made. While the wife pressed for payment, she made no application to the Divorce Court for an order that the husband pay here maintenance. The Court of Appeal upheld the decision of Byrne J. that the wife had provided no consideration for the husband’s promise of payment.

‘There was . . . clearly no promise by the wife, express or implied, to forbear from applying to the court. All that happened was that she did in fact forbear – that is, she did an act in return for a promise. Is that sufficient consideration? Unilateral promises of this kind have long been enforced, so long as the act or forbearance is done on the faith of the promise and at the request of the promisor, express or implied. The act done is then in itself sufficient consideration for the promise . . . I cannot find any evidence of any intention by the husband that the wife should forbear from applying to the court for maintenance, or, in other words, any request by the husband, express or implied, that the wife should so forbear. He left her to apply if she wished to do so. She did not do so . . . Her forbearance was not intended by him, nor was it done at his request. It was therefore no consideration.

It may be that the wife has suffered some detriment because, after forbearing to apply to the court for seven years, she might not now be given leave to apply . . . Assuming . . . that she has suffered some detriment by her forbearance, nevertheless, as the forbearance was not at the husband’s request, it is no consideration.’

(Denning LJ at 221-222).

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