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Dhruv Bansal

CMS, Nalsar

Contract Law

Table of Contents
Definition and its Requirements.......................................................................
"At the desire of the promisor" (Promissory Estoppel).....................................
Acts Done at Request......................................................................................
Promises of Charitable Nature.........................................................................
Unilateral Promises..........................................................................................
Revocation of Unilateral Promises...................................................................
Promissory Estoppel and Government Agencies..............................................
Estoppel of Licensee........................................................................................


Section 25 of the Indian Contract Act opens with the declaration that "an agreement made
without consideration is void ..... In England also "promises without consideration are not
enforced, because they are gratuitous".2 In Rann v Hughes the Lord Chief Baron SKYNNER
It is undoubtedly true that every man is by the law of nature bound to fulfil his engagements.
It is equally true that the law of the country supplies no means, nor affords any remedy, to
compel the performance of an agreement made without sufficient consideration.

Definition and its Requirements

Consideration has been variously defined. The simplest definition is by Blackstone:
Consideration is the recompense given by the party contracting to the other.

In other words, it is a price of the promise. In the words of Pollock, "Consideration is the
price for which the promise of the other is bought, and the promise thus given for value is
enforceable." Another simple definition is by Justice PATIERSON:
Consideration means something which is of some value in the eyes of the law.... It may be
some benefit to the plaintiff or some detriment to the defendant.
But the most commonly accepted definition is that which was attempted by LUSH J in
Currie v Misa:
A valuable consideration in the sense of the law, may consist either in some right, interest,
profit or benefit accruing to the one party, or some forbearance, detriment, loss, or
responsibility given, suffered or undertaken by the other.
The definition of consideration as a "price of the promise" has been commended by Cheshire
and Fifoot. According to the learned writers, "it is easier to understand, it corresponds more
happily to the normal exchange of promises and it emphasises the commercial character of
the English contract. It reveals the essential simplicity of the concept.
Similarly, the Calcutta High Court has observed in a case that consideration is the price of a
promise, a return or quid pro quo, something of value received by the promisee as
inducement of the promise."

In Section 2(d) of the Indian Contract Act consideration is defined as follows:

When, at the desire of the promisor, the promisee or any other person has done or abstained
from doing or does or abstains from doing, or promises to do or to abstain from doing,
something, such act or abstinence or promise is called a consideration for the promise.
This is rather a practical definition. The purpose is to emphasize the simple fact that
consideration is some act, done or promised to be done, at the desire of the promisor. It also
avoids the practical difficulties caused by the theory of consideration as consisting of some
act which is beneficial to one party or detrimental to the other. This antithesis has been
described to be not altogether happy. The Act simplifies the matter by saying that any kind of
act or abstinence which is done or undertaken to be done at the desire of the promisor is a
sufficient consideration.
The definition of consideration in Section 2(d) requires, in' the first place, that the act or
abstinence, which is to be a consideration for the promise, should be done at the desire of the
promisor; secondly, that it should be done by promisee or any other person and, lastly, that
the act or abstinence may have been already executed or is in the process of being done or
may be still executory, that is to 'say, it is promised to be done.

"At the desire of the promisor" (Promissory Estoppel)

The definition of consideration in Section 2(d) clearly emphasizes that an act or abstinence
which is to be a consideration for the promise must be done or promised to be done in
accordance with the desire of the promisor, In other words, an act shall not be a good
consideration for a promise unless it is done at the desire of the promisor. In Durga Prasad v
The plaintiff, on the order of the Collector of a town, built at his own expense,
certain shops in

a bazar: The shops came to be occupied by the defendants

who, in consideration of the plaintiff having expended money in the construction,

promised to pay him a commission on articles sold through their agency in the
bazar. The plaintiffs

a c t i o n to recover the commission was rejected.

"The only ground for the making of the promise is the expense incurred by the plaintiff
in establishing the Ganj (market) but it is clear that anything done in that way was not 'at
the desire' of the defendants so as to constitute consideration. The act was the result not of
the promise but of the Collector's order.

Acts Done at Request



other hand, an act done at the promisor's

desire furnishes a


consideration for his promise even though it is of no personal significance or benefit to him.
The decision of the Calcutta High Court in Kedar Nath v Gorie Mohamed has become
well-known in this connection.
It was thought advisable to erect a town hall at Howrah provided sufficient subscription
could be got together. For the purpose. To this end the Commissioners of Howrah
municipality set out to work to obtain necessary funds by public subscription. The
defendant was a subscriber to this fund for Rs 100 having signed his name in the
subscription book for that amount. On the faith of the promised subscriptions the plaintiff
entered into a contract with a contractor for the purpose of building the hall. But the
defendant failed to pay the amount and contended that there was no consideration for his
He was, however, held liable: Persons were asked to subscribe knowing the purpose for
which the money was to be applied, they knew that on the faith of their subscription an
obligation was to be incurred to pay the contractor for the work. The promise is: 'In
consideration of your agreeing to enter into a contract to erect, I undertake to supply money
for it.' The act of the plaintiff in entering into contract with the contractor was done at the
desire of the defendant (the promisor) so as to constitute consideration within the meaning
of Section 2(d).

It was indeed a promise to pay for the performance of an act and it could not have been
revoked once the promisee entered performance. In England also "the Jaw for centuries
has been that an act done at the request of another, express or implied, is sufficient
consideration to support a promise. Writing in an article Lord Justice Denning says:
is "Nowadays

there are some grounds for suggesting

that an act may be good

even though it is not a benefit to the promisor nor a detriment to the

promisee, If a man promises a charitable institution that he will pay 100 into its
funds if it procures nine other persons to do the same, justice requires that his
promise should be held binding on him as soon as it has procured
the nine others to pay 100 each; but the act done by the institution is not a benefit to
him nor a detriment to the institution." A trend of this kind is observable in a decision of
the Supreme

Court." On the death of their father, his two sons picked up a clash.


mother intervened writing to the junior son that in case his elder brother did not
pay the sum of rupees fifty lakhs which was due to him out of the family assets, she
would pay the same. The brother paid a part of the amount. The mother supplemented
the payment to a certain extent, but she had still to pay the balance amount and for
that she claimed a reduction in the computation of her net wealth. The Court allowed
the deduction. The contract

was a part of the family arrangement. It was not hit by

Section 25 as purchase of family peace in such circumstances is good consideration.

Promises of Charitable Nature

The decision of the Calcutta High Court in Kadar Natha case was followed by the
Madras High Court in two cases in both of which the court laid down that "a promise
to pay a subscription becomes enforceable as soon as any definite steps have been
taken in furtherance of the object and on the faith of the promised subscription".
In one of these cases:








for the purpose of constructing






a bridge. He was held liable to pay the

amount on the completion of the bridge

In a subsequent case, Dora swami Ayer v Arunachala Ayyar, the Madras High Court

the principle of Kedar Nath v Gorie Mahomed

on the footing that there

was not a bare promise to subscribe, but also a request that the promisee should do
an act (construction of the town hall in that case), and that where there is no such request
for an, act the promise will be a bare promise and without any consideration. The
facts of the case were:
The Repair of a temple was in progress.

As the work proceeded,

more money was

required and to raise this money subscriptions were invited and a subscription


raised. The defendant put himself down on the list for Rs 125 and it was to recover this sum
that the suit was filed.
But no recovery was allowed. CORNISH J proceeded like this:






the promise

as follows: That plaintiffs

relying on the promise of the subscriber incurred liabilities in repairing the temple.
The question is, does this amount to a consideration? The definition of consideration in
the contract Act is that where at the desire of the promisor the promisee has done or


from doing


such act or abstinence

Therefore, the definition postulates that the promisee


is called


acted on something

amounting to more than a bare promise. There must be some bargain between them
in respect

of which consideration

has been given.... There must have been some

request by the promisor to the promisee to do something in consideration of the promised

The learned judge found support in the English case of Hudson, Re where the promise was to
contribute a large. sum of money for the payment of Chapel debts, the promisor having
died after paying a large instalment, the balance. Could not be recovered

from his

executors. The claim was considered to be unsustainable in as much as the promisee had
not undertaken any liability as part of the bargain with the promise.

Applying these

principles to the present case, the learned judge. said that there was no evidence of any
request by the subscriber to the plaintiff to do the temple repairs.
The principal difference between these cases is that in the Kedar Nath case the
construction of the hall began on the faith of the promised subscriptions, but in the
present case, temple repairs were already in progress when the subscriptions were
invited. The action was not induced by the promise to subscribe

but was rather

independent of it.

Unilateral Promises
A unilateral promise is a promise from one side only and is intended to induce some action
by the other. Party. The promisee is not bound to act, for he gives no promise from his side.
But if he carries out the act desired by the promisor, he can hold the promisor to his promise.
His act is at the same time. An acceptance of and a consideration for the promise. "An act
done at the request of the offer or, in response to his promise is consideration,


consideration in its essence is nothing else but response to such a request.

It should be noted that in all the above cases where liability arose it arose only when
the promisee had by doing some act, on the faith of the promise, altered his position. It
follows, therefore, that where the promisee has done nothing, there is no consideration.
Accordingly, in Abdul Aziz v MA sum Ali, the defendant promised Rs 500 to a fund started
to rebuild a mosque but nothing had been done to carry out the repairs and reconstruction.

The subscriber was, therefore, held not liable. Similarly, it has been pointed out in other
cases that a mere promise to subscribe to a charitable institution cannot be sued upon. Thus
where the defendant had agreed to pay from time to time, out of his own pocket certain sums
proportionate to the value of the goods imported by him, to a charitable society, the promise
was held to be not enforceable, being without consideration.

Revocation of Unilateral Promises

There is yet another problem concerning such unilateral contracts. It is no doubt true that a
promise which is given in return for an act is revocable before the promisee begins to
alter his position by acting upon the promise. But may it be revoked after the promisee has
commenced performance? If, for example, the promise is to pay a sum of money if the
promisee walks from Luck now to Kanpur, can it be revoked after the promisee has
embarked upon the journey? The decision in Kedar Nath v Gorie Mohammad suggests,
though not in so many words. That such a revocation is impossible. The defendant, in that
case, was held liable as soon as the contract for the construction of the hall was entered into.
The same appears from the decision of DENNING LJ in Arrington v Errington. The owner
of a house had mortgaged it. The house was in the occupation of his son and daughter-inlaw. He told them that the house would become their property if they paid off the
mortgage debt in instalments and they commenced payment. In these circumstances, the
court felt, that it would be unjust if the promisor could revoke this promise at his
pleasure. His Lordship said:
"The fathers promise was a unilateral contract... a promise of the house in return for their
act of paying the instalments. It could not be revoked by him once the couple entered on
performance of the act. But it would cease to bind him if they left it incomplete and
Either way there is some difficulty. If the promisor is at liberty to revoke, tie 'can frustrate
the promisee at his pleasure. On the other hand, if he has no such liberty, he will be bound
even though the promisee may stop performance at his sweet will. The House of Lords,
therefore, suggested in Morrison Steamship Co Ltd v The Crowns! that the mere
commencement of performance does not convert the offer into a contract in the sense that
the promisor is bound to stay with his promise, but that if he revoked it, he may be sued for
damages or on a quantum meruit.

Promissory Estoppel and Government Agencies

The position of the doctrine of promissory estoppel as against the Government and its
agencies is thus summarized by RM SAHAI J of the Supreme Court in Amrit Banaspati
Co v State of Punjab:
Law of promissory estoppel which found its most eloquent exposition in Union of
India v lndo Afghan Agencies, crystallized in Motilal Padampat Sugar Mills v State of

as furnishing cause of action to a citizen, enforceable in a court of law, against

the Government if it or its officials in the course of their authority extended any promise
which created or was capable of creating legal relationship, and it was acted upon by the
promisee, irrespective of any prejudice. It was reiterated in Union of India v Godfrey
Philips (India) Ltd and was taken further when it was held that no duty of excise
was assessable on cigarettes manufactured by the assessee by including the cost of
corrugated fibre board containers when it was clearly represented by the Central Board of
Excise and Customs in response to the submission

made by the Cigarette

Association and the representation was approved and accepted by the

Central Government that the cost of containers would not be included in the value of
cigarettes for the purpose of assessment of excise duty. In Delhi Cloth and General Mills Ltd
v Union of India it was held: 'All that is now required is that the party asserting the estoppel
must have acted upon the assurance given to him. Must have relied upon the representation
made to him. It means that the party has changed or altered his position by relying on the
assurance or representation.

The alteration of his position by the party is the only

indispensable requirement of the doctrine. It is not necessary to prove further any damage,
detriment or prejudice to the party asserting the estoppel.'
In Gourami Oil Mills v State of Kerala the Government was not permitted to go back on
its earlier promise of wider exemption from sales tax in pursuance of which certain
industries were set up. A subsequent notification curtailing the exemption was held to
be applicable to industries established after the notification.
A promise which is against public policy or in violation of a statutory prohibition cannot be
the foundation of an estoppel.

Estoppel of Licensee
The party who was granted liquor license was held to be estopped from saying
afterwards that some of the restrictions imposed upon his trade freedom, particularly the

one under which the Government reserved with it the power to vary issue prices, were
unreasonable. Unreasonableness

has to be considered in the totality of the circumstances

including public interest. Liquor consumption has to be reduced and, therefore, free trade of
such an item cannot be encouraged. The power to vary issue prices is a method of exercising
control of this trade. The courts will only prevent a crushing

use of this power.


power does not also offended Section 29 of the Contract Act because there is no
uncertainty about the nature of the price variation clause. Its unreasonable use can always
be prevented under writ jurisdiction.
A person, who had acquired title to the land of a Council by adverse possession, agreed
subsequently to hold the same under a term license from the Council. On the expiry of the
term the Council told him to hand over possession. He tried to assert his title by adverse

He was not allowed to do so. Whatever rights he had acquired became

substituted under the new

arrangement which he voluntarily accepted.

arrangement constituted a promissory estoppel against him.


The new

Singh Avatar, Law of Contract & Specific Relief Act, 9 th Ed. 2006, Eastern Book
Company, Lucknow