法律英语词汇“consideration”的翻译、意思、用法、释义-法律词典

consideration
n. 1. An act, forbearance, or promise by one party to a contract that constitutes the price for which he buys the promise of the other (Dunlop v Selfridge [1915] AC 847 (HL)). Without consideration an agreement not made by deed is not binding; it is a nudum pactum (naked agreement), governed by the maxim ex nudo pacto non oritur actio (a right of action does not arise out of a naked agreement). If the agreement is a deed (a “contract under seal”) it can be enforced, even in the absence of consideration.

1. A valuable consideration is required, i.e. the act, forbearance, or promise must have some economic value. Good consideration (natural love and affection or a moral duty) is not enough to render a promise enforceable (Thomas v Thomas (1842) 2 QB 851, 114 ER 330).

2. Consideration need not be adequate, but it must be sufficient. Not to be adequate in this context means that it need not constitute a realistic price for the promise it buys, as long as it has some economic value. If X promises to sell his £250,000 house to Y for £25,000, Y is giving sufficient consideration despite it being below the market value. A person’s performance of, or promise to perform, an existing contractual duty usually cannot in law constitute consideration (Stilk v Myrick (1809) 2 Camp 317, 170 ER 1168) but might be seen as sufficient consideration if it confers a practical benefit on the other party (Williams v Roffey Bros & Nicholls (Contractors) Ltd [1990] 1 QB 1 (CA)), such as in a divorce. A contractual duty to a third party can constitute sufficient consideration (Scotson v Pegg [1861] EWHC Exch J2). A legal duty is not sufficient consideration (Collins v Godefroy [1831] 109 ER 1040), but going above and beyond duty can constitute sufficient consideration (Glasbrook Brothers v Glamorgan County Council [1925] AC 270 (HL)).

3. Consideration must move from the promisee. Thus if X promises to give Y £1,000 in return for Y’s promise to give employment to Z, Z cannot enforce Y’s promise, for he has not supplied the consideration for it.

4. Consideration may be executory or executed but must not be past. A promise in return for a promise (as in a contract of sale) is executory consideration; an act or forbearance in return for a promise (as in giving information to obtain a reward) is executed consideration. However, a completed act or forbearance is past consideration in relation to any subsequent promise. For example, if X gives information to Y gratuitously and Y then promises to reward him this is past consideration, which does not constitute consideration (Eastwood v Kenyon (1840) 113 ER 482 (QB)). The exception is if the act is done at the promisor’s request, the parties understood that the act was to be rewarded, and the payment or conferment of other benefits would have been legally enforceable had it been promised in advance (Lampleigh v Braithwaith (1615) 80 ER 255).

There are also two statutory exemptions: under s 27 of the Bills of Exchange Act 1882 an antecedent debt or liability can constitute sufficient consideration for a bill of exchange and under s 29(5) of the Limitations Act 1980 a previous debt can be treated as consideration under the conditions of the Act. 2. For capital gains tax and stamp duty, consideration is the actual amount received on the disposal of an asset, in money or money’s worth. Any receipt is potentially liable to be treated as consideration. Consideration can include the right to a further sum if, for example, profit targets are achieved (Marren v Ingles [1980] UKHL TC). Such consideration is an asset, the disposal of which creates a second capital gain. For VAT, consideration in something other than money must be capable of being expressed in money (Case 154/80 Staatssecretaris van Financiën v Coöperatieve Aardappelenbewaarplaats GA [1981] ECR 445).