NO CONSIDERATION NO CONTRACT”EXPLAIN.

1. INTRODUCTION:

A legally binding contract needs consideration as it is a vital element. So, a valid contract does not exist
without consideration. We know that by promise one party give or sacrifice something and other party
take something. This type of give and take or sacrifice is called consideration by law. If someone
promises without any consideration that is called gift. On the other hand give premise exchange of any
consideration that is called contract. So it is clearly seen that to become a valid agreement we need to
consider its materiality and the level of voidable.

An agreement made without consideration is void unless it is expressed in writing and registered under
the law for the time being in force for the registration of documents and is made on account if natural
love and affection between the parties standing in near relation to each other. Agreement must be in
writing and registered. If you have an oral arrangement or unregistered agreement although it is in
writing, it will not be valid even though it proceeds from natural love and affection and even if the
parties to it are near relations to each other. It must be both in writing and registered.

This essay is discussed into two separate parts. First I want to discuss about consideration and void
agreement quite elaborately and after that I will go through the topic ‘insufficiency of consideration is
immaterial, but an agreement without consideration is void’. My objective to discuss in this way is
because the whole topic is related with consideration and void agreement. By understanding
consideration and void agreement will facilitate us to understand the concept of ‘insufficiency of
consideration is immaterial, but an agreement without consideration is void’.[1]

2. CONSIDERATION:

Definition- The tem consideration may define as the price paid by one party for the promise of the
other. An agreement is legally enforceable only when each of the party is to give something and get
something. This something is given or obtained is the price for the promise and is called consideration.
Only those considerations are valid which are lawful. Subject to certain except an agreement without
consideration is void.[2]In the contract Act consideration has been defined as “when at the desire of the
promisor, or any other person has done or abstained from doing something, such act or abstinence or
promise is called a consideration for the Promise. For instance- Jaber agrees to sell his bus for Tk.
10,00,000 to Farid. For Jaber’s Promise, the consideration is Tk.10, 00,000 for Farid’s promise, the
consideration is the bus only.[3]

3. Essential of a valid consideration

Consideration must move at the desire of the promisor.

Consideration may move from the promisor or any other person.

Consideration may be past, present, or future.

Consideration must be of some value.

Examples

1. Momin agrees to sell his land to Islam for Tk. 70,000. Here Islam’s promise to pay the sum of Tk.
70,000 is consideration for Momin’s promise to sell the land; and Momin’s promise to sell the land is the
consideration for Islam’s promise to pay Tk. 70,000.[4]

2. Krim promises to pay Rahim Tk. 10,000 at the end of 7 months, if Fahad, who owes that sum to
Rahim, fails to pay it. Rahim promises to grant time to Fahad, accordingly. Here the promise of each
party is the consideration for the promise of the other party.[5]

3. (a) A past consideration is one when the consideration was given before the date of the promise. (b)
When consideration goes along with the promise, this is called present consideration. This is also called
executed consideration. Example-Rahim purchases a watch from a shop and pays the price immediately.
The consideration, therefore, moving from Rahim is a present or executed consideration. (c) Future
consideration is one when consideration moves at a future date. This is also called executory
consideration. Example- A provided money to B in the month of June. But B delivered goods in July the
consideration A is future or executor consideration.[6]

4. Generally, courts do not inquire whether the deal between two parties was monetarily fair—merely
that each party passed some legal obligation or duty to the other party. The dispositive issue is presence
of consideration, not adequacy of the consideration. The values between considerations passed by each
party to a contract need not be comparable.
For example, if A offers B $200 to buy B’s mansion, luxury sports car, and private jet, there is still
consideration on both sides. A’s consideration is $200, and B’s consideration is the mansion, car, and jet.
[7]

4. VOID AGREEMENT:

a) Literally:

Void means having no legal value and agreement means arrangement, promise or contract made with
somebody. So void agreement means an agreement that has no legal value.[8]

b) Traditionally:

“An agreement not enforceable by law is said to be void”.

A void agreement has no legal effect. An agreement which does not consist of the necessary elements of
contract is void. Void contract bestows no rights on any person and does not create any obligation.

Example:

An agreement made by a minor, agreement without consideration, certain agreements against public
policy etc.[9]

c) Agreement which become void:

An agreement, which was legal and enforceable when it was created, may afterwards become void due
to impossibility of performance, change of law or other reason. When it becomes void the agreement
loses its legal effect.[10]

4.1 Expressly Declared Void Agreement

There are certain agreements, which are expressly declared to be void.

They are as follows:

(1) Agreement by a minor or a person of unsound mind.

Agreement of which the consideration or object is unlawful

(3) Agreement made under a bilateral mistake of fact material to the agreement

(4) Agreement of which the consideration or object is unlawful in part and the illegal part cannot be
separated from the legal part

(5) Agreement made. Without consideration

(6) Agreement in restraint of marriage

(7) Agreement in restraint of trade

(8) Agreement in restrain of legal proceedings

(9) Agreements the meaning of which is uncertain

(10) Agreements by way of wager

(11) Agreements contingent on impossible events

(12) Agreements to do impossible acts [11]

Furthermore, since agreement, by definition as per section 2(e) is a promise/s in exchange for a
promise/s, each promise forming consideration for the other. It will therefore be an unequal to think of
an agreement without consideration. Therefore, we may sum up the importance of consideration
simply: Except in certain cases, a contract without consideration cannot be thought of and if made, it is
devoid of any legal obligation.[12]

5. Validity of an agreement without consideration:

The generalization is that an agreement without consideration is void, but in the following cases, the
agreement though made without consideration, will be valid and enforceable according to section 25
and 185 are as follows:-

a) Nature, love and affection: An agreement made without consideration is valid if it is made out of
love, nature and affection such agreements are enforceable if

The agreement is made in writing and registered

The agreement must be made between the parties standing in near relations to each other and

There must be nature, love and affection between the parties

Example: Voatka (vs) Rogata

Facts: By a registered agreement, ‘Voatka’, on account of nature, love and affection for his brother,
‘Rogata’, promises to discharge debt to ‘Voatka’. If ‘Voatka’ does not discharge the debt then the
agreement will be void.

Judgment: ‘Rogata’ may discharge it and then sue ‘Voatka’ to recover the amount. Therefore it is a valid
agreement.[13]

b) Compensation for past voluntary services: A promise made without consideration is valid if, it is a
person who has already voluntarily done something for the promisor, is enforceable, even though
without consideration. In simple words, a promise to pay for a past voluntary service is binding.

c) Promise to pay Time-Bared debt: An agreement to pay a time-bared debt enforceable if the
following conditions are satisfied.

The debt is a time bared debt

The debtor promises to pay the time barred debt

The promise is made in writing

The promise is signed by the debtor[14]

d) Completed gifts: The rule “No consideration – No contract” does not apply to completed gifts.
According to section 1 to 25 states “nothing is section 25 shall affect the validity, as between the donor
and done, of any gift actually made”

e) Agency: According to section 185, no consideration is necessary to create an agency.

f) Charitable subscription: Where the promise on the strength of promise makes commitments (i.e.,
changes his position to his liability/detriment)

Example: Kallu (vs) Gullu

Facts: ‘Gullu’ had agreed to subscribe Rs.100/- towards the construction of a town hall at Howrah. The
secretary, ‘Kallu’, on the faith of the promise, called for plans and entrusted the work to contractors and
undertook the liability to pay them.

Judgment: The amount could be recovered, as the promise resulted in a sufficient detriment to the
secretary. However, be enforceable only to the extent of the liability incurred by the secretary. In this
case, the promise, even though it was gratuitous, became, enforceable because on the faith of promise
the secretary had incurred a detriment.[15]

6. Exceptions to the Rule “No Consideration No Contract”

The general rule of law is that an agreement without consideration is void. “A bargain without
consideration is a contradiction in terms and cannot exist.” But there are a few exceptional cases where
a contract, even though without consideration, is enforceable. They are as follows:

1. An agreement made without consideration is valid if—

(a) It is expressed in writing

Examples of (a)

1. An elder brother, on account of natural love and affection, promised to pay the debts of his younger
brother. The agreement was put to writing and was registered. Held, the agreement was valid. [16]

(b) It is registered (under the law for the time being in force for registration of documents)

Examples of (b)
1. A Hindu husband by a registered document, after referring to quarrels and disagreements between
himself and his wife, promised to pay his wife a sum of money for her maintenance and separate
residence, it was held that the promise was unenforceable.

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

(c) It is made on account of natural love and affection

Examples of (c)

1. Abir finds Boldi’s purse and gives it to him. Boldi promises to give Abir Rs. 50. This is a valid contract.

2. Abir supports Boldi’s infant son. Boldi promises to pay Abir’s expenses in so doing. This is a valid
contract.

Example of (d)

Akkas owes Boni Rs. 5,000 but the debt is barred by the Limitation Act. Akkas signs a written promise to
pay Boni Rs. 1,000 on account of the debt. This is a valid contract.

Notice that the above section [Section 25(3)] applies only when the promisor was liable himself for the
time-barred debt; the sub-section does not apply to the case of a promise to pay a time-barred debt
owing by a third party. Further, sub-section (3) of Section 25 would not apply unless the promise is to
pay an ascertained sum. A promise to pay what is due after taking accounts is not a promise within the
meaning of Section 25(3).

4. Consideration is not necessary to effect bailment

5. No consideration is required to create an agency (Section 185). Notice, however, that if no
consideration has passed to the agent, he is only a gratuitous agent and is not bound to do the work
entrusted to him, although if he begins the work, he must do it to the satisfaction of his principal.

6. The rule ‘no consideration no contract’ does not apply to completed gifts [17]

7. Consideration: was there a value exchange between the parties?

An act or a forbearance of one party or a promise thereof, is the price for which the promise of the
other is brought and the promise this given for value is enforceable.

Some act or forbearance involving legal detriment to the promisee, or a promise of such an act or
forbearance furnished by the promisee as the agreed price of the promise.

Consideration is simply of value and may take the form of:

An act for a promise a promise for an act

A promise for a promise

A promise to forbear

Court held that although the purchase of the wool would appear to be good consideration, this was not
the case because the company needed to purchase the wool and the government was only providing a
subsidy.

Formal Contract

A formal contract is wholly in writing, usually in the form of a deed, and does not require consideration.
A promise (or term) of a contract made by deed is called a covenant. A deed can be unilateral (that is.
made by only one party) and this is often called a deed poll. A deed made by two or more parties is
called an indenture. Some types of contracts must be in writing and must be made by deed to be
effective.

Simple Contract

A simple contract may be oral or in writing (or a combination of both). Simple contracts are made
between two or more parties and require consideration.

Types of Consideration

Executory Consideration

Contract in the process of being performed (Bilateral)

Executed Consideration

Contract formed when the act is executed (Unilateral)[18]

The 12 Rules

1. Simple contracts must have consideration

The defendant was administrator of an estate and made a promise to pay a debt owed by the deceased
to the plaintiff.
Court held that as there was no consideration given by the plaintiff (Rann) for the promise made, then
the contract was void.

2. Consideration must be sufficient

Objectively, if consideration of some value exists, the court is not concerned with its adequacy.

The court held that the promise by a widow to pay annual rent (one pound) was sufficient consideration
for a contract with the executors to transfer a life estate in the property to her.

3. Consideration must be lawful

The consideration must not be illegal or unlawful and must not involve a breach of civil law or public
policy.

Parkinson gave the charity 3000 pounds in return for the promise he would receive a knighthood.

He sued after the knighthood did not eventuate and the court refused to make the order because the
consideration was a promise to do something to promote public corruption and as this was against
public policy it was illegal.

4. Consideration must not be illusory

The plaintiff entered into a contract with the Australian Government to establish a timber company in
Papua New Guinea to produce plywood for import to Australia.

A clause stated that the Government will subsidies (at a rate determined only by the defendant) the cost
of import customs. This was stopped after a few years.
The court held (3:2 majority) that the clause was not binding on the defendant because a promise of the
government subsidy is meaningless in the absence of some amount or some basis of calculation.[19]

5. Consideration must be definite

The consideration must be so certain that a court is able to place a legal value on it, no matter how
inadequate it may actually be.

6. Past consideration is no consideration

Consideration can be present or future, but not past.After the sale, the defendant promised that the
horse was in good health and not vicious,however this was untrue and the plaintiff sued for breach.

7. Consideration must move from the promise

Apart from the promisor, the only party who can enforce the contract is the other party who has
provided the consideration for the promise

This rule does not require that the promisor must receive the benefit of the consideration provided by
the promisee. Consideration need not move to the promisor, but can be provided to a third party.

8. Consideration can be a forbearance to sue

Chance of success is irrelevant:

Schubert bought a car from the defendant. The plaintiff later found that the car had faulty paintwork
and initially demanded a new car, however, the defendant offered to re-paint the car. The parties also
agreed for a representative of a paint company to supervise the work and report on it. The paintwork
was unsatisfactory and Schubert sued.

9. A promise to perform an existing obligation is not good consideration

A promise to perform an existing contractual obligation is not good consideration.

Stilt signed on as a crewmember on a ship. During the voyage, two crewmembers deserted and the
defendant promised to divide the wages that would have been paid to the deserters among the
remaining crew.

The defendant failed to honour his promise and the plaintiff sued

Court held that there was no consideration for the promise to pay the extra wages. Under the original
agreement, the plaintiff and the other crew members contractually promised to do all they could under
all emergencies of the voyage.”[20]

10. A public obligation is not good consideration

A duty imposed by the State will not amount to consideration unless it involves an excess of legal duty.

Him for his attendance. Collins attended court but did not have to give evidence. The defendant refused
to pay the promised amount.

Court held that he did not have to pay because any person who receives a subpoena is
Under a legal duty to give evidence.

11. An obligation to a third party can be good consideration

A promise to perform an existing obligation is sufficient consideration where the promise is made to a
different person.

Plaintiff informed his uncle of his engagement and uncle promised to make certain payments to the
plaintiff once the marriage took place. The uncle made some payments but not all of the agreed
payments. When the uncle died the nephew sued the estate to recover the outstanding payments.

The defendant argued that there was no consideration for the promise because the plaintiff had
previously promised to marry his now wife.

Court held that a contract to do something which the promisor is under an existing obligation to a third
party (i.e. His fiance) was good consideration. The uncle benefited from the marriage.

12. Part payment of a debt is not good consideration

The general rule if that payment of a lesser sum will not discharge the duty to pay the higher sum. Part
payment of a debt is not sufficient consideration for a promise to forgo the balance.

Flakes owed the plaintiff 2090 pounds. The plaintiff subsequently agreed to allow the defendant to pay
off the debt by an immediate payment of 500 pounds and the balance by installments’, and in return
she agreed not to precede with debt recovery proceedings. The defendant made all the payments as
agreed.

The plaintiff later demanded an additional 360 pounds as interest and the defendant refused to pay.
The court held that the interest was payable because the defendant already had the pre-existing
obligation to pay the debt and that the mere payment of instalments was not sufficient consideration.
[21]

8. CONCLUSION:

An agreement without consideration is void.” Explain this rule and state exceptions if any. Unless Indian
Contract Act 1872 in section 2(e) says that every promise and every set of promises that form a
consideration for each other is an agreement. Therefore, we can see that the existence of consideration
for a promise or promises is required for a promise to become an agreement. Thus, there cannot be an
agreement if there is no consideration. Section 25 of the act says the same thing in precise terms and
also gives three exceptions where an agreement without consideration is a valid contract:

Section25: An agreement without consideration is void unless, it is in writing and registered and the
promise has been made due to natural love and affection between the parties standing in near relation
to each other. it is a promise to compensate, wholly or in part, a person who has voluntarily done
something for the promisor or something that the promisor was legally bound to do. It is a promise to
pay for a time barred debt.[22]

The general rule of law is that an agreement without consideration is void. But there are a few
exceptional cases where a contract, even though without consideration, is enforceable.

We know that consideration involves a concept of give and take. There are rules about what makes up
an exchange and what might be exchanged in order to become a good consideration. We will look at
these rules after we have examined the requirements of offer and acceptance. The relationship between
the rules of offer and acceptance on the one hand and the rules of consideration on the other hand is
that the exchange which constitutes an acceptance of an offer – in effect an exchange of promises is
brought about by acceptance – is at the same time the necessary exchange which constitutes the
consideration. All this will become clearer when we examine the doctrine of consideration in detail.[23]

BIBLIOGRAPHY:
1Mitra Kumar Sen, “Commercial Law including Company Law and Industrial Law”, New Edition, World
Press.

2Ahmed M, 2003, business Law and Labour & Industrial Law, Bangladesh Law book company.

3 Halson, R. (2001). “Contract Law.” 1st Edition. Great Britain: Longman, Pearson Education.

4 Bockrath, J.T. (2000). “Contracts and the Legal Environment.” 6th Edition. UK: McGraw Hill

5 Huntley, .A.K., Jackie, J., Cathcart, C. (2003). “Contract: Cases and Material.” 2nd Edition. Great Britain:
Thomson, W. Green.

INTERNET:

1http://www.transtutors.com/university-california/importance-consideration-6.htm

2http://www.citeman.com/4120-no-considerations-and-no-contracts.html

3http://www.citeman.com/4120-no-considerations-and-no-contracts.html#ixzz1dIv2eh3m

4http://en.wikipedia.org/wiki/Consideration

5www.slideshare.net/vishakeb/bl-mid-sem-slides-presentation

6www.lawphil.net/judjuris/juri2009/jun2009/gr_184861_2009.html
7www.slideshare.net/vishakeb/bl-mid-sem-slides-presentation

8http://issuu.com/sbm.rawalpindi/docs/00_-_complete_mercantile_alw_-_b_5

9http://www.citeman.com/4120-no-considerations-and-no-contracts.html#ixzz1dIv2eh3m

10www.citeman.com/4120-no-considerations-and-no-contracts.html

11www.scribd.com/doc/55830084/Business-Law-IInd-Year

12 http://examrace.com/iaslawmains06.aspx

13http://www.docstoc.com/docs/52745493/Practical-Questions-In-Negotiable-Instruments-Act

14 http//contactsknowledge.com/consideration-was-there-an-value-exchange-between-the-parties

[1] http://www.transtutors.com/university-california/importance-consideration-6.htm

[2] Mitra Kumar Sen, “Commercial Law including Company Law and Industrial Law”, New Edition, World
Press.

[3] Ahmed M, 2003, business Law and Labour & Industrial Law, Bangladesh Law book company.

[4] http://www.citeman.com/4120-no-considerations-and-no-contracts.html

[5] http://www.citeman.com/4120-no-considerations-and-no-contracts.html#ixzz1dIv2eh3m
[6] Mitra Kumar Sen, “Commercial Law including Company Law and Industrial Law”, New Edition, World
Press.

[7] http://en.wikipedia.org/wiki/Consideration

[8] Halson, R. (2001). “Contract Law.” 1st Edition. Great Britain: Longman, Pearson Education.

[9] www.slideshare.net/vishakeb/bl-mid-sem-slides-presentation

[10] www.lawphil.net/judjuris/juri2009/jun2009/gr_184861_2009.html

[11] www.slideshare.net/vishakeb/bl-mid-sem-slides-presentation

[12] http://issuu.com/sbm.rawalpindi/docs/00_-_complete_mercantile_alw_-_b_5

[13] Bockrath, J.T. (2000). “Contracts and the Legal Environment.” 6th Edition. UK: McGraw Hill

[14] Huntley, .A.K., Jackie, J., Cathcart, C. (2003). “Contract: Cases and Material.” 2nd Edition. Great
Britain: Thomson, W. Green.

[15] http://www.citeman.com/4120-no-considerations-and-no-contracts.html#ixzz1dIv2eh3m

[16] www.citeman.com/4120-no-considerations-and-no-contracts.html

[17] www.scribd.com/doc/55830084/Business-Law-IInd-Year
[18] http//contactsknowledge.com/consideration-was-there-an-value-exchange-between-the-parties

[19] http//contactsknowledge.com/consideration-was-there-an-value-exchange-between-the-parties

[20] http//contactsknowledge.com/consideration-was-there-an-value-exchange-between-the-parties

[21] http//contactsknowledge.com/consideration-was-there-an-value-exchange-between-the-parties

[22] http://examrace.com/iaslawmains06.aspx

[23] http://www.docstoc.com/docs/52745493/Practical-Questions-In-Negotiable-Instruments-Act

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