14. Lesson 14
Tuesday, 22 February 2022 09:21
CONSIDERATION OF THE CONTRACT
Common Law for reciprocity:
Distinctive feature of Common Law
Contracts —> Interest, profit, benefit or determent flowing from a contract —>
consideration for the promise of each party looked at separately, not consideration
for a contract
—> For a contract: When I give something I need to have something in return -
not necessary a sum of money is required (donations). Similarly when a promise
is given, the other subject is required to give com thing in return
Rules on the doctrine of consideration:
1. Consideration must be sufficient but not adequate —> according to “causa”
something must be given in return - but legally the exchange is not required to be
“balanced” (one party can actually benefit more than the other). In general the legal
system doesn’t care about the balance of the negotiation however “Freedom of the
party” needs to be always taken into consideration, something has to be given in
return for a promise, but it is not necessary it to be an adequate return—> this
situation can cause moral issues
2. Past consideration is not a good consideration —> The promises between the
parties must be done in the present - If the consideration of a promise was in the
past, the consideration of another promise could be easily disconnected from the
other.
EXAMPLE: A washes B’s car B later promises to pay 15 euros for washing his
car, but then changes his mind and decides not to pay.
If the to promises are separate they don’t have consideration meaning they
don’t have a binding effect. A washes B’s car and than SEPARATELY B promises
to buy them. If then B decides not to buy A, A is not entitles to sue B as the
promises where discussed SEPARATELY.
The difference is between:
—> A bargain is enforceable (right to gain money back) —> pay for a rent, the
promise of paying and using the flat is settled together —> this justifies the
promise
—> A gift followed by a promise of another gift is not enforceable —> I make a flat
donation to a person concluding a contract - after another contract is made of the
counter party giving in return a sum of money —-> the two acts are considered
however separately as they weren’t discussed and bonded together.
3. Consideration must move from the promise, not from a third party —> To enforce
a promise only the party of the contract should provide a consideration. The
promise needs be connected —> when a contract produce some benefit also for a
third party outside of the contract between 2 other individuals. The third party is
not bounded by the contract (freedom of contract) therefore it doesn't have to
Tuesday, 22 February 2022 09:21
CONSIDERATION OF THE CONTRACT
Common Law for reciprocity:
Distinctive feature of Common Law
Contracts —> Interest, profit, benefit or determent flowing from a contract —>
consideration for the promise of each party looked at separately, not consideration
for a contract
—> For a contract: When I give something I need to have something in return -
not necessary a sum of money is required (donations). Similarly when a promise
is given, the other subject is required to give com thing in return
Rules on the doctrine of consideration:
1. Consideration must be sufficient but not adequate —> according to “causa”
something must be given in return - but legally the exchange is not required to be
“balanced” (one party can actually benefit more than the other). In general the legal
system doesn’t care about the balance of the negotiation however “Freedom of the
party” needs to be always taken into consideration, something has to be given in
return for a promise, but it is not necessary it to be an adequate return—> this
situation can cause moral issues
2. Past consideration is not a good consideration —> The promises between the
parties must be done in the present - If the consideration of a promise was in the
past, the consideration of another promise could be easily disconnected from the
other.
EXAMPLE: A washes B’s car B later promises to pay 15 euros for washing his
car, but then changes his mind and decides not to pay.
If the to promises are separate they don’t have consideration meaning they
don’t have a binding effect. A washes B’s car and than SEPARATELY B promises
to buy them. If then B decides not to buy A, A is not entitles to sue B as the
promises where discussed SEPARATELY.
The difference is between:
—> A bargain is enforceable (right to gain money back) —> pay for a rent, the
promise of paying and using the flat is settled together —> this justifies the
promise
—> A gift followed by a promise of another gift is not enforceable —> I make a flat
donation to a person concluding a contract - after another contract is made of the
counter party giving in return a sum of money —-> the two acts are considered
however separately as they weren’t discussed and bonded together.
3. Consideration must move from the promise, not from a third party —> To enforce
a promise only the party of the contract should provide a consideration. The
promise needs be connected —> when a contract produce some benefit also for a
third party outside of the contract between 2 other individuals. The third party is
not bounded by the contract (freedom of contract) therefore it doesn't have to
