Читать книгу Canadian Business Contracts Handbook - Nishan Swais - Страница 29

Consideration is the third and final component of a contract and, for our purposes, requires the least explanation. Let’s begin with an example.

I might offer the opinion that “April is the cruellest month.” You might accept that as true. We have an offer and we have acceptance; do we have a contract? Leaving aside the law’s position for a moment, does it even make sense in our everyday affairs to say that our exchange of views amounted to a contract?

Suppose that you offer to kiss your sweetheart and your sweetheart accepts. Did you enter into a contract for a kiss? Again, there is offer and acceptance. Still, I think you’d agree that it is absurd to speak of a contract in that context.

Now suppose that you, as offeror in our previous example, offer to sell your friend your car for $10,000 and he accepts. Is there a contract to buy your car? This sounds more like a contract, doesn’t it? After all, aren’t thousands of cars sold every day under exactly those or similar circumstances? This time, talk of a contract does not seem so absurd. Yet, even in this case, there is no contract, at least as far as the law is concerned.

What is missing is what the law calls consideration, which is what finally draws us together in the eyes of the law.

In the simplest terms, consideration means, “to get something you have to give something.” Agreement to do something is not enough. There has to be value exchanged between the offeror and the offeree before a contract will be found to exist, at law. That is the meaning of consideration.

There is no value exchanged in agreeing that the month of April is the cruellest. Nor is there value exchanged in a kiss (poetics aside). However, if I give my friend a car and my friend gives me money, value has been exchanged. In fact, very tangible value has been exchanged because he now has something to use for his work and I have the means to afford a nice vacation. Each of us has given consideration.

Why would such a seemingly abstract notion as consideration be so important in determining whether a contract exists? The best answer to this question is that the law, again in its wisdom, seeks to enforce bargains. The law does not want to, and shouldn’t, step in to give its opinion on such matters as whether you and I share a common opinion regarding the month of April or whether your sweetheart is obliged to share a kiss. These aren’t legal matters. The law’s purpose, especially insofar as it can force us to comply with our commitments, is directed toward enforcing exchanges of value.

In that regard, it is also worth noting that the law will not enforce gratuitous promises. If I promise to fix the clutch on your motorcycle and I never get around to it, there is no basis at law to enforce the original promise against me, because I made it gratuitously, meaning, there was no exchange of value between us or consideration given for the promise. If it were otherwise, the courts would be tied up in endless demands to enforce the empty assurances that crowd our days.

What does the law look at in determining whether there has been an exchange of value? Two concepts are relevant: sufficiency of consideration and adequacy of consideration.