Abstract

Consiaeration is mm of me most important ele

to constitute a valiu and enforceable contract. Hell
it has caused confusion “If-”Ha the law students and lawyers
alike. :cvisicn of uil‘fer'ent iaws nas worsen the
situations arm tnis is iy so in final:

'l‘ne contract law of is governed by

the .fiaia' in Ccntracts Act 1:06“ 1:; :: statutcry law
2
drafted s :0 turn. 01fi ml: lmuan Contract act . As
.
“1131‘ . .

far as Inui-‘1 Contract Act is concernfad, one famous

tn».-
7
author, sir E‘recerick Pailock), has said that the
characteristic of that not was tnat it was a code of the
Sngl in La... L‘nat author be true, but should he it
noted that not all provisions under the dnglish Contract
law are couifiec into that Act and even some of me
codifieu provisions are in aisagreement to the .inglish
contract law. AF. abvious depgrture from tne .mfilisn law
can be seen in cases on yast consideration.

Therefore, the primary objective of this 5 any is

to analyse the nifferences between the Mal . ian Contracts
Act 1750 and the Lngiisn Law insofar as consideration is
concerned. The sway, However, is not confined to tnese
two laws only infact it extends to the Indian position.

1. Contracts Act 1950, Act 156, Revised 1974.

2. Indian Contract Act, Act IX of 1572.
5. BULLOCK, Sir Frederick; i'LLLOCh NULL; on Indian or.

Contract anu Specific ieleif Act; p. xi.

 V1

Tuhle

Add“ v Hanna 4-. $ons Ltd (1967) 11 .113 245

Balm Ram V Dh:=~ n Singh (1957) P141453!) 169

Balfour v Balfour 2 LB. 261

Biddeg'v Bridges .)7 Ch. D 506:

Bremer naming Gesellshnfk v '

Venden Avenne Izei 1. (1378) Rep 109

Bret v J.S. on His Wife '(1600)

Casey's Batsnts, :(e, Stewart v Caey (1:92)
Central Londnn Property Trust Ln: v
High Trees :uuse Ltd. (1947‘) Ls. 150

Chiuanbeu‘a Iyer v Renga Iyer (1966) 1 J.C.i(. 168

Chinnaya v Rmnyya (1551) A .~1;_d 157

Citezen B..r;k (If Lunsiana v

First National B.mk of New L/rleans (1575) m GIiL 552

Combe v Combs.- (W951) All :3 767

Cook v Lister (186)) 15 0.5. (N.S.) 543

Cooper v z'arker (1855) 15 me. 822

Currie v i'lisa (1678) L1 10 :ch 155

D a: C Builders v Rees (1966') 2 a 517

Debnarayan Dult v Chunillal Glmse (1914) 41cm. 137, 145

Dunlap Pneumatic Tyre Ca. Lu v Selfridgge (1915) 3.:. a47, 853

Jutton v i—acle (1678) 2 Lev. 210

mstwocd v Kenyon (1840) 5.. .x- :.1 45a

jmmanuel Ayodeji fiyaji v J’I‘ Briscoe (1964) 5 All dd. 556

 ‘1

NAPIER 0N;
CUNSIDQLinl‘lL'i‘! : PU".4‘3I\E4, .1.;E‘Iulv.‘1\;.«
“flu 'umudnL :e.
‘he presence or absence of consiueration Has been
the crucial factor in developed English law ever since the
sixteenth century. It is n tuml to assure that the
aucytion of such a test cunnected tr: Mme underl'dng
tfiénry as to why agreemenfi? are enforced. 'Cwsideratian'
has been forcefully argued '1," a word long rooted in the
.yage of.‘ rJnglish 'nu ates it: fundamental
attitude to contract ".31” m a when ‘3: Lawyers in the
mindle 0A the sixteenm co. bury, evoived thro ' the
action of assumpsit, a 59 9:31 contractua’i‘remedy, they
decided that it would not wail to redress tne branch
of any and every promise, w. tever its nature. It Has
beer: said, in particular. that it was decided that
assumpsit was not to be used to enforce a gratuitous
promise so that plaintiff must show that the uefenaant‘s
promise upan which he wws suing, was part of a bargain
to which he himself has contributed to. ’l‘nerefore it
has been persuasively argued that the doctrine of
consideration represents the adoption by :lnélish law
of the nation that only bargains should be enforced.
Consideration at this point has been said to mean a
reason for the promise being binding, fulfilling
something like the role of cause. or cause in continental
system.1

Throughout the seventeenth and the eighteenth

century, the doctrine of consideration had been accepted
as an integral part of the new law of contract. However.
its pride of place was challenged when Lord Mansfield
was made the Chief Justice of the King's Bench where
in the case of rinlmim v Em» “1.34052 he treated
consideration as merely an evidence of the parties

‘1. FIFOU'I‘, History am sources of the Common Law

amsou, 54 L».,'1‘ 235
Slui‘JUN A.B.‘«'; A History of the Common Law of
Contract: The Rise 01" ussnmpsit (1975)
2. (1756) 5 Burr. 16w
intention to refused to recognise it as the
be bound and
vital critericcm of contract. "his attack of Lard Mansfield
a

was, however, repelled in mum v HUdoi where it was proclaimed

that,
l

" all contracts 9519' by tne laws of England

distiriguished into agreements by specialty
and agrer-ments parol; nor is there any
.
such third clws ..... as contracts in
writing. If t“ be merely written and
/
not specialties, tne‘x‘ are pargl, and a
consideration must be proved."

Lord Iuansfield‘s second attack on consideration was

much more unpleasant. 'w'hile endorsing consideration as
essential to a contact he defined it in terms of moral
obligation as he din in MA; v .mUu ‘4. However it
wzxs repudiated a hundred years later in the case of

AnufJLLLA v 149:5 when Lord Demm' condemned the'whole

principle of moral obligation being an innovation of
hard Mansfield, and that to destroy it would be .to
restore the pure and original doctrine of the common
law. He further pointed out that the logical inference
from the acceptance of moral duty as th'a sole test of
an actionable promise would be the destruction of
consideration. The law insisted some additional factor
to the defendant's promise. whereby the promise became
legally binding; but if
no more was needed than the
pressure of conscience, this would pperate as soon as
the defendant voluhtorily assumed an undertaking.

j. (15723) 7 Term Rep jSO

4. (1782) 1 CW? 289
5. (1840) an a 51 4'58