c Consideration may move from third party s 2d provides that consideration may

C consideration may move from third party s 2d

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(c) Consideration may move from third party - s. 2(d) provides that consideration may be provided by “the promisee or any other person” i.e it may move from the third party. - This is different from the previous English Law in Currie v Misa [1875] where consideration must move from the promisee only. Currently, the English law has reformed this under Third Party Act . (d) Past Consideration - Past consideration consists of something wholly performed before the promise was made. - In English Law it was held in the case of Roscorla v Thomas [1842] that the general rule is that consideration must not be past. The exception is where the act was done at the request of the promisor as per case of Lampleigh v Braithwait [1615]. - The definition of consideration by virtue of s.2 (d) is wide enough to cover the rule in Lampleigh . s.2(d) provides that when, at the promisor’s desire, the promisee or any other person has done or attained 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. Thus, as long as the act was done at the desire of the promisor it would be a valid consideration. Further the words has done or abstains from doing suggests that even if the act was prior to the promise, that act would be good consideration provided it was done at the promisor’s desire ( request ).
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- s.2 (d) only covers cases of past consideration where there has been a request or desire expressed first by the promisor. - s.26 (b) provides that a promise, by the promisor to compensate the promise for something which he promise has already voluntarily done for the promisor or for something which the promisor was legally compellable to do, would not be void for want of consideration. s.26(b) does not require the the act to be done at the desire of the promisor. - In JM Wotherspoon & Co Ltd v Henry Agency House [1962] , the plaintiff had acted at the suggestion of the defendant. It was held that the plaintiff’s act was not voluntary and therefore there was no binding contract under s.26(b) . - In Leong Haat Sawmill (Pte) Ltd v Lee Man See (FC) [1985] , the appellant had promised to pay the respondent additional wages under their contract. Upon the respondent’s suit claiming the extra wages, the Federal Court held that work done by the respondent was not voluntary. Thus, the promise to pay extra wages was not enforceable under s.26(b) . (e) Natural love and affection - Under English Law a promise made in consideration of natural love and affection cannot be sued upon as per Bret v JS & His Wife [1600]. - However in Malaysia, an agreement made without consideration is not void where it is expressed in writing and registered under any relevant applicable law and that agreement is made on account of natural love and affection between parties who stand in a near relation to each other pursuant to s.26(a) .
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  • Winter '17
  • Daniel

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