|
Consideration is the concept of legal value in connection with contracts. It is anything of value promised to another when making a contract. It can take the form of money, physical objects, services, promised actions, abstinence from a future action, and much more. Consideration to create a legally enforceable contract entails a bargained for, legal detriment incurred by the promisee OR a legal benefit to the promisor. Under the notion of "pre-existing duties", if either the promisor or the promisee already had a legal obligation to render such payment, it cannot be seen as consideration in the legal sense. In common law it is a prerequisite that both parties offer consideration before a contract can be thought of as binding. The doctrine of consideration is irrelevant in many jurisdictions, although contemporary commercial litigant relations have held the relationship between a promise and a deed is a reflection of the nature of contractual considerations. If there is no element of consideration found, there is thus no contract formed. However, even if a court decides there is no contract, there might be a possible recovery under ''quantum meruit'' (sometimes referred to as a quasi-contract) or promissory estoppel. If A signs a contract to buy a car from B for $5,000, A's consideration is the $5,000, and B's consideration is the car. Additionally, if A signs a contract with B such that A will paint B's house for $500, A's consideration is the service of painting B's house, and B's consideration is $500 paid to A. Further, if A signs a contract with B such that A will ''not'' repaint his own house in any other color than white, and B will pay A $500 per year to keep this deal up, there is also consideration. Although A did not promise to affirmatively do anything, A did promise ''not'' to do something that he was allowed to do, and so A did pass consideration. A's consideration to B is the ''forbearance'' in painting his own house in a color other than white, and B's consideration to A is $500 per year. Conversely, if A signs a contract to buy a car from B for $0, B's consideration is still the car, but A is giving no consideration, and so there is no valid contract. However, if B still gives the title to the car to A, then B cannot take the car back, since, while it may not be a valid contract, it ''is'' a valid gift. There are a number of common issues as to whether consideration exists in a contract. ==History and comparative law== Roman law-based systems〔e.g. In Germany, § 311 BGB〕 (including Scotland) do not require consideration, and some commentators consider it unnecessary and have suggested that consideration be abandoned, and estoppel be used to replace it as a basis for contracts.〔e.g. P.S. Atiyah, 'Consideration: A Restatement' in ''Essays on Contract'' (1986) p.195, Oxford University Press〕 However, legislation, rather than judicial development, has been touted as the only way to remove this entrenched common law doctrine. Lord Justice Denning famously stated that "The doctrine of consideration is too firmly fixed to be overthrown by a side-wind."〔Central London Property Trust Ltd. v. High Trees House Ltd. () KB 130〕 The reason that both exist in common law jurisdictions is thought by leading scholars to be the result of the combining by 19th century judges of two distinct threads: first the consideration requirement was at the heart of the action of assumpsit, which had grown up in the Middle Ages and remained the normal action for breach of a simple contract in England & Wales until 1884, when the old forms of action were abolished; secondly, the notion of agreement between two or more parties as being the essential legal and moral foundation of contract in all legal systems, promoted by the 18th century French writer Pothier in his ''Traite des Obligations'', much read (especially after translation into English in 1805) by English judges and jurists. The latter chimed well with the fashionable will theories of the time, especially John Stuart Mill's influential ideas on free will, and got grafted on to the traditional common law requirement for consideration to ground an action in assumpsit.〔For a detailed and authoritative account of this process, see A. W. B. Simpson, ''A History of the Common Law of Contract: The Rise of the Action of Assumpsit'', (Oxford University Press: Oxford, 1975).〕 Civil law systems take the approach that an exchange of promises, or a concurrence of wills alone, rather than an exchange in valuable rights is the correct basis. So if you promised to give me a book, and I accepted your offer without giving anything in return, I would have a legal right to the book and you could not change your mind about giving me it as a gift. However, in common law systems the concept of ''culpa in contrahendo'', a form of 'estoppel', is increasingly used to create obligations during pre-contractual negotiations.〔''Austotel v. Franklins'' (1989) 16 NSWLR 582; see also ''Walton Stores (Interstate) Ltd v Maher'' (1988) 164 CLR 387〕 Estoppel is an equitable doctrine that provides for the creation of legal obligations if a party has given another an assurance and the other has relied on the assurance to his detriment. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「consideration」の詳細全文を読む スポンサード リンク
|