To begin with, a contract is a legally binding agreement made between two or more parties with the present of some essential elements like offer and acceptance, inconsideration etc. To form a contact effectively, there must be an offer by one party and an acceptance of it by the other. Concerning the fence being built along Dad’s garden, an oral agreement is formed between Tommy and Dad. According to the case, Dad promised Tommy to reduce the size of the fence if Tommy agreed not to sue Dad. This constitutes an offer since it involves unilateral contract, I. E. One party (Tommy) promises to perform if the other party (Dad) perform. Cargill v Carbolic Smoke Ball Co. (1893)1). According to Cook v Wright (1861)2, the court hold that forbearance from pursing gal claim is a good consideration. The Cook case is similar to Dad’s case. Dad knew Tommy will sue her if she did not reduce the height of fence. In order to avoid legal responsibilities, Dad compromised. It can be concluded that Tommy’s forbearance from pursing legal claim is a good consideration. Besides, Dad made a definite promise (to reduce the size of fence) to Tommy with the serious intention, which is to stop Tommy from making a legal claim against Dad, of being bound by this promise.
This is obviously not simply an invitation to treat but an offer with definite form capable of being accepted in identical terms. After the offer is made, acceptance can determine whether a contract can be effectively formed between two parties. Tommy has communicated with Dad and agreed to Dad’s offer that forbore not to sue her for the promise of reducing the height of fence by Dad. Tommy is willing to bind by all the terms of the offer made in the case. In Flophouse v Bindle (1862)3, acceptance is effective only when it is communicated by the two parties. Therefore, a contract is constituted since Dad received Tommy’s acceptance orally.
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Since Dad has made an offer to Tommy and it is aid to be effectively accepted by Tommy with consideration. The oral agreement made between Tommy and Dad constitutes a contract I. E. A legally binding refused to reduce the size of the fence at the end, she is said to be fail to perform her contractual obligations. Tommy can go to the court or seek specific performance such as injunction. In short, under a legally binding contract, even if Dad’s fence is perfectly lawful, still Dad has the obligation to reduce the height of fence. Tommy can sue Dad for not performing the contract. Another issue in this case is on the Dad and her friend, Mackey.
Dad has asked Mackey for some advice on the complaint of fence by Tommy. She has promised to pay $1000 after Mackey offered help. First, consideration means the exchange of promises between two parties. A valid contract must also include consideration. In Lush J in Curries v Miss (1874-75)4, a valuable consideration must constitute either a benefit accruing to one party, or a burden suffered or undertaken by the other. According to Thomas v Thomas (1842)5, the doctrine of consideration requires something of value in the eyes of the law to move from the promise in order to make the promise enforceable.
It must be measurable in monetary terms. The $1000 that Dad promised to pay is the value that can make the promise enforceable. However, consideration must not be past. In Re Macrame (1951)6, a promise to make payment for work that the promise had already completed was held not to be enforceable. Dad seeks Mackey for professional advice regarding the fence case as Mackey is a barrister and she promised to pay for Mickey’s help afterward. This is actually a past consideration as Mackey has already provided advice to Dad, and Dad’s decision of paying $1000 to Mackey is made after Dad received the advice.
Accordingly, since Mickey’s performance of services is not on the understanding that it will be paid for and it is completed before the promise is made, it is a past consideration and is not a valid consideration in this case. In conclusion, as the consideration of Mackey is a past one, it is held not to be enforceable legally. Dad is not legally bound by her promise. Therefore, in this case, although Dad failed to pay $1000 to Mackey, Mackey is not advised to sue Dad since no contractual relationship is formed between them with regard to the past consideration.