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Title: Assess the importance and necessity of consideration in Engish Law - Dissertation Example

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Assess the Importance and Necessity of Consideration in English Law Introduction ‘Consideration’ is the only approach in which courts of the common law jurisdictions will settle if a binding agreement has been created out of offer and acceptance and if the agreement should have effect in law…
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Title: Assess the importance and necessity of consideration in Engish Law
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Download file to see previous pages This is the more reason why there are certain important exceptions to this, based around the concept of ‘reasonable reliance’ which is commonly called the doctrine of ‘promissory estoppel’. But this should apply for the most part, to the variation of existing legal obligations. For there to be a binding contract there must be offer and acceptance bounded on or backed by consideration and the intension to enter into a legal relationship. The doctrine of consideration has been deeply rooted in contract law since the 16th century, and it is a crucial factor to determine whether an agreement is enforceable or unenforceable. In English contract law, a promise is not as a general rule binding as a contract unless it is either made in deed or supported by some consideration. The general rule is that simple or ordinary contracts are not legally binding unless supported by consideration. The purpose of the requirement of consideration is to put some legal limits on the enforceability of agreement even where they are intended to be legally binding. Thus, gratuitous promises (gifts) are not binding because they are made without consideration and the claims of such promises are less compelling than those of a person who has furnished consideration. Meaning of Consideration It is common knowledge that definitions as to the legal meaning of consideration can be classified into two categories. The first identifies consideration with regards to advantage and loss1: and the second category identifies consideration to it as an ingredient of a bargain2 The courts have appropriately defined in the following cases: Lush J in Currie v Misa3 state that “ a valuable consideration in the sense of the law may consist of some rights, interest, profit or benefits occurring to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other” Consideration means something which is of some value in the eye of the law, moving from the plaintiff; it may be some detriment to the plaintiff or some benefit to the defendant, but at all events it must be moving from the plaintiff.4 Pollock defines consideration as “An act or forbearance of the 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”5. It was stated in Restatement, Contracts that:6 (1) To constitute consideration, a performance or a return promise must be bargained for. (2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise. Whatever the constituent elements of the various definitions, valid consideration must be bargained for. This means that before a promisee’s promise or act can be thought of as amounting to consideration, it should be settled that the promise or act is conferred at the call of the promisor in addition to some reliance on the promisor’s promise:7 It can be seen from the forgoing that consideration consists of or rest on two things: one is that the promise is legally binding if it is given in return for some benefits which is rendered or to be rendered to the promise; the other is the notion that a promise becomes binding if the promisee incurs a detriment by reliance upon it that is if he changes his position in reliance on the promise in such a way that he will be worse off if the promise were broken than ...Download file to see next pagesRead More
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