(1) Of an immoral or a criminal nature;

(2) An agreement to commit an act opposed to public policy or to trade with the enemy;

(3) A contract to impede justice or to defraud the Revenue; (4) A marriage brokage contract;

(5) Certain classes of contract in restraint of trade, or involving maintenance or champerty. (p)

In Ford v. Radford (1920), plaintiff started a "Turf Register business, to collect gaming debts which were not recoverable under the Gaming Acts. The defendant became a member of the society and agreed that if the plaintiff recovered any debts due to defendant they would share equally. Plaintiff alleged that defendant collected the debts himself and now asked for his share under the agreement. It was held that this agreement was illegal and void, being champertous, and contrary to public policy, as there was no community of interest between the parties.

Consideration must not be an act which the party is already under legal obligation to perform.-Obviously if A is already legally obliged to pay £20 to B, such payment cannot be consideration for a new promise on B's part. Similarly, if B is under legal obligation to perform a certain act for A's benefit, he cannot demand that A shall pay him a sum of money by way of consideration for doing it.

Consideration must not be past.-A mere voluntary courtesy is not sufficient to support a subsequent promise, or, in other words, past services rendered voluntarily, however valuable, are not sufficient to support a simple contract. If A owes money to B and afterwards gives B a security, the antecedent debt is not sufficient consideration for it, but if he give a Bill of Exchange the consideration will be sufficient to support it. If C sells a horse to D and afterwards gives him a warranty that the horse is sound, no action could be brought on the warranty as the consideration for it is past. But if the warranty had been given while bargaining or at the actual time of sale, it would hold good and could be sued upon by the purchaser should the horse prove to be unsound. Although a voluntary courtesy is not sufficient, a courtesy moved by a previous request will be construed as possessing sufficient consideration. In Lampleigh v. Brathwait (1616), a man who had committed a criminal offence requested the plaintiff to take journeys and to exercise his influence to secure a pardon for him. After the pardon had been obtained he promised plaintiff £100 for work done, and it was held that the promise was binding as the defendant had

(p) See post, p. 40.

requested the plaintiff to perform the work. In some cases, falling within the following circumstances, the law implies a previous request

(a) Where the plaintiff has been compelled to do that which the defendant was legally compellable to do,

e.g., where

a surety has been made to pay the amount for which he was surety. (b) Where the plaintiff has voluntarily done that which the defendant was legally bound to do, and in consideration thereof the defendant afterwards expressly promises. (c) Where the defendant has adopted the benefit of the consideration, e.g., where a tradesman sends goods to a person who had not ordered them and the person elects to retain the goods.

Consideration may be classified also into Executed and Executory. In the former case the consideration is transferred on the making of the contract, but in the latter case the consideration. remains to be given effect to. Executed consideration must not be confused with Past consideration. Past consideration, which usually has no legal effect, is a benefit given before the time of making, executed consideration is given at the time of entering into the contract.

OFFER AND ACCEPTANCE

The parties to a contract must have the same intention and, no matter how complicated or involved the agreement may be, there must always be a definite offer and an unqualified acceptance. "An agreement is not a contract unless the terms are certain or capable of being made certain." A says to B, “I will sell you my horse for £50, will you have it?" B says, "Yes"; then the contract is complete.

viz.,

There are, however, certain definite rules to be observed,

Offer.

(1) The offer may be to a definite person or to persons generally; but, in order to make a contract, acceptance must be by a definite person or persons. The offer must be communicated to the offeree or his agent. (2) The offeror may attach any conditions he pleases, but they must be notified to the offeree.

(3) The offeror cannot bind the other party.

(4) The offer may be revoked at any time before acceptance, (5) Revocation must be communicated.

Acceptance.

(6) Acceptance must be unconditional.

(7) The offer can be accepted only by the party to whom made (if made to a particular person) and acceptance must be communicated.

(8) Acceptance need not be in definite verbal or written form. (9) Acceptance must be within the time stipulated, or within a reasonable time.

(10) Acceptance cannot be revoked.

(1) Offer may be to a definite person or generally; but acceptance must be by a definite person.-Although the offer must be definite, it need not be made to a definite person; but if it is made to a definite person it can be accepted only by that person. It may, however, be to the world at large, as, for instance, by an advertisement in a newspaper; but there is no contract until the offer has been accepted by a definite person. Thus, in the case of Carlill v. Carbolic Smoke Ball Co. (1893), referred to previously, a patent medicine company advertised that they would give £100 to anyone who contracted influenza after using their specific for a certain period. A did use the article for the prescribed time, and in accordance with the directions; but afterwards he contracted influenza and brought an action to recover the £100 from the company. It was held that there was a sufficient offer, and that the plaintiff by performing the conditions had accepted the offer. [See under (7) below as to why acceptance in this case need not be communicated.]

(2) Offeror may attach any conditions he pleases, but they must be notified to the offeree.-An offeror may attach any conditions he pleases to his offer, but they must be definite and must all be brought to the notice of the offeree. Any terms or conditions must be observed by the acceptor, for instance, an offer stating that acceptance must be by telegram could not be accepted by letter, and any such acceptance may, as in the case of Quenerduaine v. Cole (1883), be evidence of such unreasonable delay as to justify withdrawal of the offer; although, obviously, the reverse would be valid, that is, where the offeror specified that a letter would be sufficient, and the acceptor telegraphed.

(3) Offeror cannot bind the other party. The offeror cannot bind the other party by any attempt to dispense with a communication of acceptance. If a person made an offer of certain goods at a stated price, and added, "If I do not hear by noon to-morrow, I shall conclude you accept," he could not legally regard the silence of the other party as an acceptance. In the case of Harvey v. Facey (1893), A telegraphed to B asking, “Will you sell BHP? State lowest price." B replied, "Price is

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£900," and A telegraphed, Agree to buy at £900." It was held that there was no contract, as this was not an offer by B and it could not therefore be accepted by A.

(4) Offer may be revoked at any time before acceptance.—An offer once made may, unless it is under seal, be revoked at any time before acceptance, even if the offeror has agreed to leave it open for a certain length of time, unless, of course, consideration has been given for keeping the offer open; for, until it is accepted, he has a locus penitentiæ (i.e., an opportunity of repentance) allowed him. Thus, A might offer to sell a horse to B for £50 and say that he could have three weeks in which to consider the matter. But A could sell the horse to another purchaser at any time before acceptance by B if, as in the case of Dickinson v. Dodds (1876), there had been no consideration for the promise to keep the offer open, and it could not be enforced as a contract ; so that if B had knowledge of the sale he could not then accept the offer and attempt to bind A. But if B had no knowledge of the sale and had not been informed of any revocation, the offer would hold good, and he could make a valid acceptance.

(5) Revocation must be communicated.-Revocation of an offer must, however, as decided in the case of Byrne v. Van Tienhoven (1880), be communicated in some way to the other party, otherwise he may accept; and, if he does so while the offer is presumably open, he will have a right of action against the offeror. An offer is presumed to be open for a reasonable time if no time is specified, or until it is revoked. But what is a reasonable time depends, obviously, on the circumstances of the particular case. The death of either party before acceptance acts as a revocation of the offer, even though the fact is unknown to the other party.

(6) Acceptance must be unconditional. To be binding, the acceptance must be unconditional, that is to say, any proposed modification of the terms or the manner or form of acceptance is not an acceptance of the offer but is a counter-offer. Thus, in Jordan v. Norton (1838), A wrote to B offering to buy his mare if he "warranted her sound and quiet in harness." B wrote back that he accepted the offer and warranted her sound and quiet in double harness; he had not tried her in single harness. It was held that A had not assented to this, which was, in effect, a counter-offer, and not an acceptance of his offer.

(7) Offer can be accepted only by the party to whom made, and acceptance must be communicated. The offer can be accepted only by the party to whom it is made, and such acceptance must be communicated to the person who made the offer, unless the offeror has waived notification, e.g., if he expressly or impliedly

says that it will be sufficient to act on the offer, as in the case of Carlill v. Carbolic Smoke Ball Co. already cited, in which case the performing of the act is sufficient acceptance. The acceptance may be tacit, as, for instance, a person purchases a ticket from a railway company containing a statement that the passenger agrees to the conditions on the back of the ticket or contained in the company's time-table books, and acceptance of the terms will be presumed if the passenger had reasonable notice of these conditions. What is reasonable notice in such cases depends on the circumstances. If he had read the conditions, then, without any doubt, he is bound by them; and also if he knew or saw that there were conditions but he did not trouble to read them; or, as in Parker v. South Eastern Railway (1877), where the conditions were stated plainly on the face of the ticket so that if he did not read them he was guilty of negligence.

(8) Acceptance need not be in definite verbal or written form.The acceptance need not be put into definite verbal or written form; for, if a tradesman exposes goods marked with a price for sale outside his shop, any person who comes along and picks up the goods and tenders the money has made an acceptance. At a sale by auction, the person who bids offers to buy at that price, and the fall of the hammer is an acceptance of the offer.

(9) Acceptance must be within the time stipulated or within a reasonable time.-If a time is mentioned when the offer is made, the offer must be accepted within that time. If no time is specified, then it must be accepted within a reasonable time. What is a reasonable time is a question of fact depending on the particular circumstances. On the matter of time, the use of the post often has an important bearing.

Use of the Post.—The party-usually the offeror-who first uses the post as a means of communication makes the Post Office his agent, so that an acceptance of an offer made by post is complete as soon as it is posted; that is, in effect, as soon as it is handed to the offeror's agent. Thus, in Adams v. Lindsell (1818), A wrote to B on 2nd September offering to sell wool at a certain price and asking for a reply by return of post. The letter miscarried and was not delivered to B until 7th September. B replied at once, and his acceptance was received on 9th September; but the wool had been sold on the 8th. It was held that B could recover for non-delivery of the wool, for his acceptance had been posted (that is, handed to the offeror's agent) before the wool was sold. A letter revoking the offer is of no effect if received subsequently to the posting of the acceptance, even though the latter has not then reached the offeror or, as in the case