Диссертация (972076), страница 44
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The court held that the son's promise was notsufficient consideration to make his father's promise binding, because it had no economic value.Similarly, a moral obligation [what a person ought to do], has no legal substance; it is notmeasurable and not commercial. Love and affection as such will not support a contract, although theyare of the highest moral nature. In the same category are agreements to pay the obligations of othersor to provide for relatives.3).
___________________________Lawyers often say that consideration must not be past, but this is slightly confusing because theemphasis is not really about the time that the consideration was given, but more about whether theconsideration was given in exchange for the other party's consideration. Consideration must be givenin return for the promise or act of the other party; something done, given or promised for anotherreason will not count as consideration.
If one party has completed performance before the otheroffered consideration, then as a matter of fact it is unlikely that the earlier performance was done inreturn for that consideration. So, if Ann looks after Ben's dog while Ben is on holiday, and when Benreturns he promises to give Ann some money, Ann cannot enforce that promise because she did notlook after the dog in return for it - she had already looked after the dog.There are two exceptions to the rule that past consideration is no consideration. The first is wherethe past consideration was provided at the promisor's request, and it was understood that paymentwould be made.For example, there are many requests which carry with them unsaid promises to pay - when weask a taxi driver to take us somewhere, or ask the milkman to leave an extra pint, we do not actuallysay that we will pay for those goods and services, but it is clearly understood by both parties that wewill.251The second exception to the rule on past consideration is the bill of exchange.
Under s. 27 of theBills of Exchange Act 1882, an “antecedent debt or liability” may be consideration for receipt of abill of exchange.IV. Consideration can be a promise not to sue.If one party has a possible civil claim against the other, a promise not to enforce that claim is goodconsideration for a promise given in return. If, for example, Ann crashes into Ben's car, Ben mightagree that he will not sue Ann if Ann pays for the damage, and Ben's promise not to sue will beconsideration for Ann's promise to pay.Where forbearance [a promise not to sue] to enforce a legal claim is offered as consideration, theremust have been some intention actually to bring proceedings.
Also if the party who has the claimhonestly believes it to be legally valid, but it turns out not to be, the promise will still be goodconsideration. So, in the car accident example above, even if it subsequently transpires that for somereason В could not have successfully sued A, anyway B's promise not to sue is still validconsideration, providing В honestly believes he has a claim against A.V. Detrimental reliance.Often promises are broken. If, however, you rely on a promise and do something or do not dosomething and when that promise is not fulfilled you are injured as a result, you may be able to claimrelief under the doctrine of detrimental reliance (sometimes referred to as promissory estoppel)."Detrimental" means that some type of harm was done. This doctrine is one of the ways of making apromise binding even if there is no consideration. For example, if your brother-in-law invites youfor a visit in May and then has to cancel the invitation, that is generally not a problem.
What if heknows, however, that you plan to buy nonrefundable plane tickets for your family and does not letyou know that he is likely to cancel the invitation because that is the busy time of year in his business?Even though it is unlikely that you would sue your brother-in-law, it is possible that the court wouldfind detrimental reliance. In other words, there is no contractual basis for a suit, but under theequitable doctrine of detrimental reliance, your brother-in-law might be responsible for your “losses”.Promissory estoppel may apply when the following elements are proven:1. a promise was made;2.
reliance on the promise was reasonable and foreseeable;3. the reliance was detrimental;4. injustice may only be prevented by enforcing the promise.There is one other way in which a promise can be made binding without consideration: it can beput into a deed. Deeds are typically used to give legal effect to what might otherwise be a gratuitousgift, which would be unenforceable for lack of consideration.Exercise 7.
Think of headings that suit paragraphs 1), 2), 3) in Requirements to considerationbest.Exercise 8. Read the text again and answer the following questions:1. What is consideration? What idea is the concept of consideration based on?2. What can be consideration?3. What cannot be consideration?4. Who is a promisor / a promisee?5.
Can a promisor and promisee be one and the same person?6. What is a gratuitous promise? Why is it not enforceable at law?7. Why are not gifts usually considered contracts?8. What is executory / executed consideration? Give examples.9. What is the consideration for the promise in a unilateral / bilateral contract?10.
What is the meaning of the term “adequacy of consideration”?11. What does the principle “to have some economic value” mean?25212. Why does not moral obligation constitute consideration?13. What does the statement “consideration must not be past” mean?14. What are the two main exceptions to this rule? Give examples.15. What is forbearance?16. What is necessary where forbearing to enforce a legal claim is offered as consideration?17.
What is the doctrine of detrimental reliance? Is there any contractual basis to sue under thisdoctrine?18. In what cases may promissory estoppel apply? LANGUAGE FOCUS KEY VOCABULARY PRACTICEExercise 9.Complete the table and translate the words into Russian:VerbNounTo promise(3)executionAdjective(2)detrimentalTo relyabstainingTo benefitenforcementExercise 10.
Match the following terms with their definitions to check how well youknow the key terms:1.executory considerationA.2.unilateral contractB.3.4.5.executed considerationeconomic valueto take legal proceedingsC.D.E.6.giftF.7.forbearanceG.voluntary transfer of ownership withoutconsiderationsomething that has already been performed atthe time of formation of the contractto start legal actionrefraining from doing what one has a right to doa contract involving a promise by one party andan act by the other partysomething that is to be done in the future afterthe contract is formedsome physical valueExercise 11. Translate the following prepositional phrases.in return forto be enforceable at/in lawto bargain forto amount toto have a claim against smb.253to be given in return for smth.to be put into a deedto rely onExercise 12.
Insert the necessary prepositions:1. Consideration is a bargained ___ exchange ____ legal value given ____return ____ aperformance or promise ____ performance so that a contract can be formed.2. If А simply says he will give you something ___ requiring anything _____ return, this type____ promise is not usually enforceable ___law.3. Each party must give something ___ return ____ what is gained ___ the other party.4. If you wish to enforce someone’s promise ___ you, you must prove that you gavesomething ___ return ___ that promise.5. Executory consideration is where something is to be done __the future __ the contract hasbeen formed.6.
While making a contract you promise to deliver some goods ___ me and I promise to pay__ them when they arrive.7. The courts will not inquire __ the adequacy ___consideration.8. The reason ____ this rule is the old idea ____ freedom ____ contract.9. Today there are many requests which carry ___ them unsaid promises to pay and it isunderstood ____ both parties that they will.10.
The second exception ____ the rule ___ past consideration is the bill __ exchange.11. _____Section 27 ___the Bills ___ Exchange Act 1882 an “antecedent debt or liability”may be consideration ___ receipt ___ a bill __ exchange.12. If one party has a claim ___ the other, a promise not to enforce that claim is goodconsideration __ a promise given ___ return.Exercise 13. Look through the text and fill in the gaps with the missing words:1. In English law, an agreement is not usually _______ unless it is________ by what is called___________.2. Consideration constitutes a ________ for the promisee and a ________to the promisor.3.
A promise not supported by consideration is called a _______ promise. This type ofpromise is not usually ____________ at law.4. Consideration must be ________ but need not be__________.5. Where ___________ to enforce a legal_______ is offered as consideration, there musthave been some intention actually to bring__________.6. When a promise is not fulfilled and you are________ as a result, you may be able toclaim______ under the ________ of detrimental__________.7. There is one other way in which a promise can be made________ without consideration:it can be put into a ____________.8. Consideration is a __________ exchange of legal ______ given in return for a___________or promise of ___________so that a contract can be formed.Exercise 14.
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