Introduction
The doctrine of consideration is a fundamental principle of the common law of contract, which has been received into the legal system of Ghana. For a simple contract to be legally enforceable, each party must provide consideration, which is often described as the price for which the promise of the other is bought (Dowuona-Hammond, 2011). In essence, consideration is something of value in the eyes of the law that is given in exchange for a promise. Ghanaian courts have consistently applied and interpreted this doctrine, establishing a body of case law that illustrates its practical operation. This assignment will set out the facts and holdings of key Ghanaian cases to demonstrate how the courts have dealt with specific rules within the doctrine of consideration, particularly the rules relating to past consideration and the sufficiency of consideration.
Past Consideration is Not Good Consideration
A core rule of the doctrine is that consideration cannot be 'past'. This means that an act or forbearance that took place before a promise was made cannot be used as consideration to enforce that promise. The act must be done in return for the promise, not before it. The Ghanaian case of Kessie v Charmant provides a clear illustration of this principle.
Facts: In Kessie v Charmant [1973] 2 GLR 194, the plaintiff, Kessie, voluntarily and without any request, introduced the defendant, Charmant, to a timber merchant. This introduction led to the defendant securing a valuable business contract with the merchant. After the contract was secured, the defendant, grateful for the introduction, promised to pay the plaintiff a commission for his help. The defendant later failed to make this payment, and the plaintiff sued to enforce the promise.
Holding: The High Court held that the plaintiff’s action must fail because there was no valid consideration to support the defendant's promise to pay the commission. The act of introducing the defendant to the timber merchant was performed before the defendant made the promise of payment. As the act was not done in exchange for the promise but had already been completed, it was deemed to be past consideration. Hayfron-Benjamin J stated that a past service voluntarily rendered was not sufficient consideration to support a subsequent promise. The court affirmed the established common law principle that an act done prior to a promise being made is not legally sufficient to make that promise binding.
Sufficiency of Consideration: Forbearance to Sue
Another important rule is that consideration must be sufficient, but it need not be adequate. 'Sufficient' means it must be something of value in the eyes of the law, while 'adequate' refers to its commercial or market value. The courts will not inquire into the fairness of the bargain. An example of a form of consideration that the law recognises as sufficient is a promise to forbear from suing someone. The case of Afrifa v Class-Peter demonstrates this aspect of the doctrine.
Facts: In Afrifa v Class-Peter [1975] 1 GLR 359, the defendant’s son had negligently driven a vehicle and caused damage to the plaintiff's car. The plaintiff had a valid legal claim against the son for the cost of the repairs. The plaintiff threatened to initiate legal action against the son. To avoid this, the defendant (the father) approached the plaintiff and promised that if the plaintiff would refrain from suing his son, he would personally pay for all the repairs to the car. The plaintiff agreed to this and did not sue the son. However, the defendant subsequently failed to pay for the repairs as promised, leading the plaintiff to sue the defendant to enforce his promise.
Holding: The court held that there was a binding contract between the plaintiff and the defendant. The plaintiff’s promise to forbear from suing the son was a valid and sufficient form of consideration. By agreeing not to pursue his legal right to sue, the plaintiff had suffered a detriment (giving up a legal right), and the defendant had gained a benefit (his son was protected from a lawsuit). This act of forbearance was something of value in the eyes of the law and was sufficient consideration to make the defendant’s promise to pay for the repairs legally enforceable.
Conclusion
The Ghanaian cases of Kessie v Charmant and Afrifa v Class-Peter demonstrate the practical application of the common law doctrine of consideration within the jurisdiction. These decisions show that the Ghanaian courts adhere to established principles inherited from English law. Kessie v Charmant confirms the rule that a promise made in return for an act already performed is unenforceable due to the consideration being past. In contrast, Afrifa v Class-Peter illustrates the principle that consideration need only be sufficient, not adequate, by recognising that a promise to refrain from exercising a legal right constitutes valid consideration. These cases provide a clear guide to the operation of the doctrine of consideration in Ghanaian contract law.
References
Afrifa v Class-Peter [1975] 1 GLR 359
Dowuona-Hammond, C. (2011) The Law of Contract in Ghana. Frontiers Printing & Publishing.
Kessie v Charmant [1973] 2 GLR 194
