INTRODUCTION:
It is a well-known fact that offer and acceptance, considered the two most essential components of any agreement, are the primary foundations upon which any contract is founded. On the other hand, to get to an agreement, there must first be a genuine offer followed by an acceptance of that offer. It is necessary for there to be a reason to create those legal ties, which is something that may be referred to as consideration, for that agreement to be legally binding. If this intention is missing, the contract will not be legally enforceable. When attempting to clarify what the phrase “emblem of successful enforcement” means, one word that may be used is “consideration of the contract.” [1]
The importance of consideration can be gauged from the proper comprehensive definition and its significance. As mentioned in the case of Currie v. Misa, which aptly describes this: “A valuable consideration, in the legal sense, may consist of some right, interest, profit, or advantage accruing to one party, or some forbearance, harm, loss, or duty granted, experienced, or undertaken by the other.”[2]
Questions arise when a new agreement that modifies the conditions of an existing one might be backed by “consideration” or be formalized as a deed before it can be legally binding. For the modification to the agreement to be enforceable, it is necessary for there to be some compensation to back it up. When a contract is changed, it is not uncommon for just one of the parties involved to make a new promise while the other party merely restates its commitments within the terms of the existing agreement. This makes the situation more complicated than it would otherwise be. Executing the variation agreement in the form of a deed is one approach that may be used to circumvent this problem. Thus it challenges the longevity of the concept of consideration in case of variation in a contract.[3]
Consideration and Variation of Contract:
In the practical realm, many business parties to contractual agreements change the terms of their contracts by deed, which eliminates the need for them to consider them. This is because, in most cases, acts may be enforced even without consideration. When modifying a contract, using a deed is necessary because it requires extra formalities such as witness signatures. This helps prevent the potentially complicated legal issues that arise when determining whether one party has given attention to the other. One more method for circumventing the matter of consideration is to mention a clause in the written document, which modifies the contract by changing its terms to the payment of a nominal amount. This little amount will be taken into consideration.[4]
A question has often arisen about the validity of consideration of a contract and its continuity in future contracts. It has been strongly suggested that the doctrine be done away with (for example, in the article “Should the Doctrine of Consideration be abolished”?)[5]. The English Law Revision Committee on the Statute of Frauds and the notion of consideration argued that promises should be allowed to be enforced without the need for consideration in various contexts. In its findings, later turned into law as the Contracts (Rights of Third Parties) Act of 1999, the committee recommended that qualified third parties be given the right suit for breach of contract, even when nothing was given in return.
In a significant Report titled “Privity of Contract: Contracts for the Benefit of Third Parties,” the English Law Commission observed that “the theory of consideration may be a relevant issue for a future independent examination.” In addition, the court of Appeal of Singapore stated in an obiter dictum in the case of Gay v. Loh[6] In the modern world, the ideology may have become obsolete or redundant, and more effective alternatives may have replaced it. The concepts of purpose to establish legal relations, promissory estoppel, and the vitiating considerations of coercion, undue influence, and unconscionability are some of the most effective alternatives.
One-sided contract changes are those in which one party agrees to contribute more for the same reciprocal duty which means accepting an increased reciprocal duty (referred to as an adding modification), or accepting a decreased reciprocal responsibility (referred to as a subtracting modification) from the other party. In recent years, this specific feature of the function of consideration in unilateral contract revisions has been the principal target of criticism. The conventional response to the issue is that such modifications are never enforceable since the promisee does not provide any legal advantage in return for the modifying promise; it only agrees to complete (or partially perform) what it was previously required to do. The cases of Stilk v. Myrick[7] and Foakes v. Beer[8] are examples of cases that support this answer. This stance has been considered the most detrimental misinterpretation which diverts attention from its fundamental concept: bargain as the basis for enforcing commitments.[9]
Contract sanctity and opportunity exploitation are serious concerns, both of which point to an argument against enforcement. The unpleasant fact is that a change in circumstances (other than frustration) may make it almost difficult for the promisor to execute the promise without some modification on his or her behalf. An anti-enforcement argument is made in this statement. One-sided adjustments may be supported by qualities of cooperation, mutual accommodation, and efficiency when one party is in difficulty. Birks believes it has the ability to reduce waste and frustration among partners who have already started a project and to safely bring projects to conclusion without delays and unwarranted bad feelings.[10]
Some case studies that dealt away with the barrier of consideration are enlisted: Williams v. Roffey[11] by expanding the scope of consideration; in Collier v. Wright[12] via the use of an extended theory of promissory estoppel to avoid consideration.. In Antons Trawling and Gay v. Loh, the necessity for consideration was eliminated. Interdependent and sequential implementation of the three approaches is required. Using promissory estoppel as a means of circumvention becomes less necessary as consideration is expanded, whereas eliminating consideration eliminates the need for such circumvention. Abolition, on the other hand, eats all in its path. If an alternative analysis can be accommodated into the normal framework of “practical benefit” evaluation that is not illusory, none of the three procedures should be used.
CONCLUSION:
The notion of consideration in contract law has, for some reason, captivated a significant number of individuals throughout many centuries and generated a tremendous amount of debate. Although the concept has survived the test of time with regard to the formation of contracts, its capacity to sustain its predominance with regard to changes in contractual responsibilities has been called into doubt. In the 2018 case Rock Advertising Ltd. v. MWB Business Exchange Centres Ltd[13], A dilemma of whether or not an oral modification was supported by deliberation was deemed superfluous and undesired by the UK Supreme Court, since the interpretation at issue was illegal due to the absence of written documentation and signatures needed under the licence agreement. This decision was taken because the licence agreement needed written documentation and signatures for every alteration.
The highest court of United Kingdom did not provide clarification on the subject of consideration in the event of a change of contract. However, the highest court in Singapore concluded that the theory of consideration should be eliminated concerning variances in contractual obligations. The courts of the UK ought to take precedent from the courts of Singapore in case of variation of contracts and shall permit abolishing the concept of consideration in the interpretation of contracts.
BIBLIOGRAPHY
All Answers ltd, ‘Consideration & Promissory Estoppel Contract Law Lecture’ (LawTeacher.net, June 2022)
BOWLES C, ‘Varying A Contract: Things To Consider’ [2021] EM Law
Collier v. Wright [2007] EWCA Civ 1329
Currie v Misa (1874) LR 10 Ex 153
Foakes v. Beer (1884) App Cas 605, [1881]–[1885]All ERRep 106
Gay v. Loh [2009] SGCA 31
Nolan D, ‘Economic Duress And The Availability Of A Reasonable Alternative’ (2002) 8 Restitution Law Review
Rock Advertising Ltd. v. MWB Business Exchange Centres Ltd [2018] UKSC 24
Stein P, ‘Gifts And Promises: Continental And American Law Compared. By John P. Dawson. [New Haven And London: Yale University Press. 1980. Ix, 236 And (Index) 4 Pp. £10·70 Net.]’ (1981) 40 The Cambridge Law Journal
(1936) 49 Harv LR 1225)
Stilk v. Myrick (1809) 2 Campbell 317,170 ER 1168
Williams v. Roffey [1991] 1 QB 1, [1990] 1 All ER 512 (CA)
[1] All Answers ltd, ‘Consideration & Promissory Estoppel Contract Law Lecture’ (LawTeacher.net, June 2022)
[2] Currie v Misa (1874) LR 10 Ex 153
[3] BOWLES C, ‘Varying A Contract: Things To Consider’ [2021] EM Law
[4] BOWLES C, ‘Varying A Contract: Things To Consider’ [2021] EM Law
[5] (1936) 49 Harv LR 1225)
[6][2009] SGCA 31
[7] (1809) 2 Campbell 317,170 ER 1168
[8] (1884) App Cas 605, [1881]–[1885]All ERRep 106
[9] Stein P, ‘Gifts And Promises: Continental And American Law Compared. By John P. Dawson. [New Haven And London: Yale University Press. 1980. Ix, 236 And (Index) 4 Pp. £10·70 Net.]’ (1981) 40 The Cambridge Law Journal
[10] Nolan D, ‘Economic Duress And The Availability Of A Reasonable Alternative’ (2002) 8 Restitution Law Review
[11] [1991] 1 QB 1, [1990] 1 All ER 512 (CA)
[12] [2007] EWCA Civ 1329
[13] [2018] UKSC 24
