Task For a contract to be enforced in a court of law, it must satisfy the essentials of a valid contract. These essentials of avalid contract include, offer, acceptance, consideration, capacity, legality of the subject matter, and the intention to create legal rights. If one or more of these elements is missing on a contract, the courts will be reluctant to enforce such a contract. It is therefore the burden of the party seeking relief in a court of law to prove the existence of these essentials of a valid contract. This is because the courts do not create the terms in a contract, but rather enforces the wishes the wishes of the parties as stipulated in the contract (Stone, 2009, p.23). The burden of proof thus falls on Tom to prove that a valid contract existed between him and Henry. In the scenario, the issue of capacity among the parties does not suffice, as both parties were mature and consenting adults. The issue then becomes to determine whether the promise to make by Henry to Tom amounted to a contract. In this respect, it is important to look at the ways in which a valid contract can be created. A contract can be created expressly, orally or impliedly. Under common law, a contract can be created orally by the courts considering the intention of the parties at the time of making the agreement. This however depends on the intention of the parties at the time of contracting, and the evidence available as to proof that the statements were intended to create a contract. From this therefore,
Tom may institute a lawsuit in court against Henry for breach of contract. However, there is limited evidence as to the existence of the offer made by Henry to Tom. This could therefore work to Tom’s disadvantage in proving that a valid contract existed between him and Henry. This is because despite the existence of an offer, it was incapable of performance as the subject matter of the contract was in existent. Secondly, the essentials of a valid contract require that there must be consideration for an agreement between parties to become enforceable in a court of law. Section 2(d) of the Indian Contract Act 1872 defines consideration as, “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 promises to abstain from doing something, such act or abstinence or promise is called a consideration for the promise.” From this definition, it is evident that consideration need not be money. Rather it can take the form of an act or the abstinence or a promise to do or to abstain from doing anything. In the leading case of Currie vs. Misa1 consideration was defined as the, “A valuable consideration in the sense of the law may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.” From this definition, a person suing for a breach of contract need to show that he had suffered some loss or some other form of detriment accruing from his reliance on the offer. This detriment need not be in monetary terms, but rather any form detriment (Tufal, 2010, p.1). In the scenario, Tom did not suffer any kind of detriment from the reliance of Henry’s promise. He cannot prove to the court that because of his reliance on henry’s promise he was placed at any disadvantage whatsoever. The requirement to prove the element of consideration thus acts to defeat Tom’s claim against Henry. Similarly, it is a general rule that consideration must not be past. This is because past consideration is no consideration at all. It arises from the promise to pay or perform an act based on work already done. For example, if B promises A to give him some money upon after A voluntarily helping him out to clean his compound, A cannot go on to demand the money in court if B is unwilling to pay up. This position was adopted by the court in the Re McArdle2 where a promise was given to the plaintiff in consideration of doing some work for the defendant. It turned that later on the defendant refused to carry out the promise owed to the plaintiff and thus the plaintiff initiated a lawsuit against the defendant. The court held that the promise was given after the work had already been done and such a promise, even though based on concrete action, did not constitute sufficient consideration. The consideration was therefore past consideration hence in sufficient. The case was thus held against the plaintiff. Similarly, in the scenario Henry’s promise had come after Tom had agreed to help him tow his vehicle after it had broken down. This means that under common law Henry’s promise to Tom amounted to past consideration, which Tom could not enforce in a court of law. This would therefore act to defeat Tom’s claim against Henry in a court of law. From the foregoing arguments and analysis of the law, it is certain that Tom’s suit against Henry for the enforcement of his promise would certainly fail in a court of law. This is because firstly, the offer was incapable of acceptance at the time it was made. Secondly, there was no consideration on the part of Tom, and finally even if there might have been some form of consideration it was already past consideration. References Re McArdle  AC 669 Currie v. Misa (1875) L.R. 10 Ex. 162 Tufal A (2010), Consideration, web 16 November 2011 Stone R, (2009), The Modern Law of Contract: Seventh Edition, New York; Cavendish Publishers.