Sometimes a promise to pay bonus for extra labour is not enforceable in court
and sometimes even a peppercorn is enough consideration to hold a contract
valid - such is the eccentric nature of English contract law. Consideration
under English law is the detriment suffered by the promisee which is the same as
the promisor's benefit..
Doctrine of Consideration has its origin embedded in
assumpsit, which in turn has evolved from the law of torts a few centuries
ago. The need for consideration was stressed, during the 1560s, by the fact that
plaintiffs in court proceedings were not allowed to file assumpsit claims simply
because the defendant pledged to do anything. As a result, there was a need to
bind a promise so that the plaintiff could have a proof of their claim and seek
Even though consideration acts as the gatekeeper for English contract law and
regulates the functioning of the same, over the years several legal scholars
have resented its peculiar principles and some have even tried to disable it.
But their efforts had achieved little success. One such attempt was by Lord
Mansfield in 1765 through Pillans v. Van Mierop
 case, where he established
the rule that a written promise made in or as part of a business transaction is
enforceable without regard to consideration.
The intention to contract or the
purpose to take on a legally binding obligation, was all that mattered to him.
Later, in the 19th century Lord Denning made great efforts to further the stance
of removing consideration from the English law through the High Trees  case,
where he tried to do away with Pinnel's rule, but received similar fate.
The Indian Contract Act (ICA), 1872 was being drafted when all these English
cases were gaining popularity. The ICA is said to be adopted from the English
Contract Act but the sections are in complete contrast to the principles of
consideration of English law. India, as UK, used 'will theory' as the basis for
forming a contract, where the foundation of the contract is meeting of the
minds, everything else is secondary.
The diction of s 2(d), ICA is such that it
is not in line with the English contract law, where detriment to the promisee
has major significance.
For example: Kedarnath v. Gorie Mohammed
 held that,
under s 2(d), ICA, the municipal corporation (promisee) making the temple at the
desire of the subscribers (promisor) is enough consideration to make the
contract enforceable. But the same is not enforceable under English law because
there is no detriment faced by the promisee and would result into a gratuitous
The drafters of the ICA have not totally shunned the English law, but modified
it to their own liking, providing consideration a decidedly subjective
tonality. Likewise, under s 25(1), ICA does include that an agreement in
writing does not require consideration, as stated in English Law.
Indian law that written agreement will only be enforceable if the relation
between the promisor and promisee is of 'natural love and affection' and said
agreement is registered. While s 25(1) had been inclusionary of English contract
law, s 25(2) and s 63 ICA, are in complete opposition of past consideration rule
 and the Pinnel's rule respectively.
Frederick Pollock and Dinshah Mulla are authors to the most influential work in
Indian contract law even considered as the Bible of Indian contract law. Though
they were very prestigious scholars, they made fundamental errors in
understanding the mindset and wishes of the framers of ICA.
They read English
Law in ICA, incorporating meaning into words that the drafters of the act never
wanted and completely overlooked core elements that made consideration in Indian
law as it was. The broad ambit of s 2(d) was misused by Pollock and Mulla to
impute English meaning of consideration to Indian contract law.
In Doraswamy v Arunachala
, though the case was very similar to the Kedarnath
case a completely different judgement was given because of strict application of
the adopted English law, i.e., the absence of the detriment and benefit factor.
The mindset that Indian law should incorporate everything followed by the
English law suggests that even great scholars couldn't leave their colonised
notions behind because for more than hundred and twenty years no one questioned
the great conjecture between English contract law and Indian contract law.
The more astonishing fact is that the Indian courts agreed with the new meaning
of consideration drawn by Pollock and Mulla. The only reasonable answer for this
is: that generation of lawyers have been made to study doctrine on consideration
under ICA from an English law perspective. Nevertheless, let us hope that Indian
lawyers, scholars and also judges remove this imposed British blindfold and look
at Indian contract law from the outlook it is meant to be seen with.
- Pre-existing duty rule in Stilk v Myrick (1829) 6 ep 129, 2 camp 317
- A peppercorn is a metaphor for a very minimal cash payment needed to
meet the requirements for the formation of a legal contract in legal jargon.
First used in Chappell & Co Ltd v Nestle Co Ltd  UKHL 1
- Currie v. Misa (1875) LR 10,162
- Merriam Webster states Assumpsit is 'A former common-law action to
recover damages for breach of a contract', https://www.merriam-webster.com/dictionary/assumpsit
- A.W.B. Simpson, A History of the Common Law of Contract: The Rise of the
Action of Assumpsit, Oxford Scholarship Online (2012)
- Pillans v van Mierop, (1765) 3 Burr 1663.
- Bernard L. Shientag, Lord Mansfield Revisited-- A Modern Assessment,
10(3), Fordham L. Rev. 345, P.18 (1941
- Central London Property Trust Ltd v High Trees House Ltd  KB 130
- Pinnel v Cole, (1602) 5 Co Rep 117
- Kedarnath v. Gorie Mohammed, (1887) ILR 14 Cal 64
- Shivprasad Swaminathan, Eclipsed by Orthodoxy, 12, Asian Journal of
Comparative Law, pp. 141�16 (2017)
- Promise to compensate past voluntary actions
- Doraswamy Iyer v Arunachala Ayyar  AIR Mad 135
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