Читать книгу Canadian Business Contracts Handbook - Nishan Swais - Страница 31

A second concept that frequently arises when discussing consideration is that of adequacy of consideration. It may surprise you to learn that courts generally will not take into account whether the exchange of value was a fair one. In legal terms, courts will not question adequacy of consideration.

Returning to our example, if your car has an actual book value of several hundred thousand dollars (e.g., a rare antique) and you offer it for sale for only $10,000, a court will not say that there was no consideration given just because the offeree “underpaid” for the car. Ultimately, it is left to the persons involved to exercise their judgment and make their own determinations about the value of what is being exchanged. There are two reasons why courts take this approach.

First, courts do not wish to regulate market forces. If courts start taking it upon themselves to determine fair pricing or other values, it would interfere with the free market in such a way that it would leave every exchange of goods or services open to judicial review. You couldn’t sell an ice cream cone without the potential of someone going to court to challenge the price he or she paid.

Second, courts do not presume to replace their business judgment with yours. If you believe that a Jackson Pollock painting — one with subject matter made up of colourful splashes and swirls — is worth several million dollars, then no court will stand in the way of your desire to pay that price for it.

That being said, there is the caveat that while courts do not look into adequacy of consideration, it may on occasion exercise its broad powers to overturn transactions on other basis if it believes that an exchange of value is grossly disproportionate. The classic example is that of an embittered spouse who may wish to unload valuable, jointly owned goods (e.g., a family sports car) just to get back at the other spouse. In those circumstances, a court may find some other reason to invalidate the contract even though its real, unspoken reason for doing so will likely be related to a lack of adequacy of consideration.