Consideration is One of the Three Main Building Blocks of a Contract

In Australia, the bargain theory of consideration prevails, where the act or forebearance of one party or promise thereof is the price for which a promise is bought.

Consideration for a particular promise exists where some right, interest, profit or benefit accrues (or will accrue) to the promisor as a direct result of some forbearance, detriment, loss or responsibility that has been given, suffered or undertaken by the promisee. The consideration must be executory or executed, but not past.

Consideration is executory when a promise to do something in the future is given in exchange for another promise to be done in the future. Consideration is executed when a promise is actually executed, in exchange for another promise to be executed in the future. Consideration is past when a promise has been given or executed before and independently of the other promise. For example, I promised to take you to lunch, and then when we got there I said “you must pay, because I have given you the benefit of my company” This is past consideration and therefore NO consideration.

Consideration can be anything of value (such as an item or service), which each party to a legally-binding contract must agree to exchange if the contract is to be valid. If only one party offers consideration, the agreement is not legally a binding contract. In its traditional form, consideration is expressed as the requirement that in order for parties to be able to enforce a promise, they must have given something for it (quid pro quo): something must be given or promised in exchange or return for the promise. A contract must be “met with” or “supported by” consideration to be enforceable; also, only a person who has provided consideration can enforce a contract. In other words, if an arrangement consist of a promise which is not supported by consideration, then the arrangement is not a legally enforceable contract. Mutual promises constitute consideration for each other. (“I promise you to do X, in consideration for which promise you promise me to do Y”).

In Australia, the bargain theory of consideration prevails, where the act or forebearance of one party or promise thereof is the price for which a promise is bought.

Classic Islamic law

The formative period of fiqh stretches back to the time of the early Muslim communities. In this period, jurists were more concerned with pragmatic issues of authority and teaching than with theory.[12] Progress in theory happened with the coming of the early Muslim jurist Muhammad ibn Idris ash-Shafi`i (767-820), who laid down the basic principles of Islamic jurisprudence in his book Al-Risala. The book details the four roots of law (Qur’an, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Qur’an and the hadith) be understood according to objective rules of interpretation derived from careful study of the Arabic language.[13]

A number of important legal concepts and institutions were developed by Islamic jurists during the classical period of Islam, known as the Islamic Golden Age, dated from the 7th to 13th centuries.[3][4][14][15]

[edit] Origins

According to Muslims, Sharia Law is founded on the teachings of Allah and the acts and sayings of Muhammad as found in the Qur’an and the Sunnah.[16] However, sharia was not fully developed at the time of Muhammad’s death, but rather it evolved around the Muslim community or Ummah through which it would serve.[citation needed]

When sharia began its formation in the deserts of Arabia about 1,400 years ago, the time Islam was born,[17] a sense of community did not exist. Life in the desert was nomadic and tribal, thus the only factor that tied people together into various tribes was through common ancestry.[16] However, the nature of Islam challenged that ideology and brought all those who professed their submission to Islam into the Ummah. Additionally, Islam was not just a religion but a way of life. Laws had to be instilled so the doctrines of sharia took root. All who are Muslim are judged by sharia[18] – regardless of the location or the culture.

Sharia was guided through its development by lifestyles of the tribes in which was initially absorbed into Islam. Thus, through the understandings of the tribe, Islamic law would be a law of the community – for the community by the community – even if initially proposed by an individual “for they could not form part of the tribal law unless and until they were generally accepted as such.”[16] Additionally, Noel James Coulson, Lecturer in Islamic law of the University of London, states that “to the tribe as a whole belonged the power to determine the standards by which its members should live. But here the tribe is conceived not merely as the group of its present representatives but as a historical entity embracing past, present, and future generations.”[16] So, while “each and every law must be rooted in either the Qur’an or the Sunnah,”[19] without contradiction, tribal life brought about a sense of participation. Such participation is further reinforced by Muhammad who stated, “My community will never agree in error”.[19]

After the death of Muhammad, sharia continued to undergo fundamental changes, beginning with the reigns of caliphs Abu Bakr (632–34) and Umar (634–44) in which many decision making matters were brought to the attention of Muhammad’s closest comrades for consultation.[17] In AD 662, during the reign of Muawiya b. Abu Sufyan ibn Harb, life ceased to be nomadic, and undertook an urban transformation that created matters not originally covered by Islamic law.[17] Every change of Islamic society has played an active role in developing sharia, which branches out into Fiqh and Qanun respectively.

Before the 19th century, legal theory was considered the domain of the traditional legal schools of thought. The legal schools followed by most Sunni Muslims were Hanafi, Hanbali, Maliki or Shafi`i. Most Shia Muslims followed the Ja’fari school of thought.[20]

Leading cases

[edit] Gilbert v. Minnesota (1920) – Freedom of speech

There was a strong conservative streak in the U.S. beginning with World War I and into the 1920s, and this conservatism was reflected by decisions of the Supreme Court. In clear contrast to many of the Court’s positions, however, both Brandeis and Justice Oliver Wendell Holmes often took the dissenting position and became noted for consistently challenging the majority’s view. These dissensions were most clear in cases dealing with the free speech rights of defendants during the military draft, leading to Justice Holmes developing the concept of “clear and present danger” as a condition before a violation would be declared and both Holmes and Brandeis using this doctrine in other cases. According to historian John Vile, Brandeis was “spurred by his appreciation for democracy, education, and the value of free speech and continued to argue vigorously for . . . free speech even in wartime because of its educational value and the importance to democracy.”[3]:128 And according to legal historian John Raeburn Green, Brandeis’s philosophy influenced Justice Holmes himself, and writes that “Justice Holmes’ conversion to a profound attachment to freedom of expression . . . may be taken to have occurred in 1919, and to have coincided roughly with the advent of Mr. Justice Brandeis’s influence.”[28]

One such case was Gilbert v. Minnesota (1920) which dealt with a state law prohibiting any interference with the military’s enlistment efforts. In his dissenting opinion, Brandeis wrote that the statute affected the “rights, privileges, and immunities of one who is a citizen of the United States; and it deprives him of an important part of his liberty. . . the statute invades the privacy and freedom of the home. Father and mother may not follow the promptings of religious belief, of conscience or of conviction, and teach son or daughter the doctrine of pacifism. If they do, any police officer may summarily arrest them.”[29]

According to legal author Ken Gormley, “it is clear that Brandeis was attempting to introduce a notion of privacy which was connected in some fashion to the Constitution . . . and which worked in tandem with the First Amendment to assure a freedom of speech within the four brick walls of the citizen’s residence.”[30] And by 1969, in Stanley v. Georgia, Justice Marshall succeeded in linking the right of privacy with freedom of speech and making it part of the constitutional structure, quoting from Brandeis’s Olmstead dissent and his Whitney concurrence, and adding his own conclusions from the case at hand, which dealt with the issue of viewing pornography at home:

“It is now well established that the Constitution protects the right to receive information and ideas. . . If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds. . . Georgia asserts the right to protect the individual’s mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person’s thoughts.”

[edit] Whitney v. California (1927) – Freedom of speech

The case of Whitney v. California is notable partly because of the concurring opinion of both Justices Brandeis and Holmes. The case dealt with the prosecution of a woman for aiding the Communist Labor Party, an organization that was promoting the violent overthrow of the government. In their opinion and test to uphold the conviction, they expanded the definition of “clear and present danger” to include the condition that the “evil apprehended is so imminent that it may befall before there is opportunity for full discussion.” According to legal historian Anthony Lewis, scholars have lauded Brandeis’s opinion “as perhaps the greatest defense of freedom of speech ever written by a member of the high court.”[31]:85 In their concurring opinion, they wrote:

“Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of free speech to free men from bondage of irrational fears. . . Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. . . ”

[edit] Olmstead v. United States (1928) – Right of privacy

In his widely cited dissenting opinion in Olmstead v. United States (1928), Brandeis relied on thoughts he developed in his Harvard Law Review article in 1890. But in his dissent, he now changed the focus whereby he urged making personal privacy matters more relevant to constitutional law, going so far as saying “the government [was] identified . . . as a potential privacy invader.” At issue in Olmstead was the use of wiretap technology to gather evidence. Referring to this “dirty business,” he then tried to combine the notions of civil privacy and the “right to be left alone” with the right offered by the Fourth Amendment which disallowed unreasonable search and seizure. Brandeis wrote in his lengthy dissent:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.” [32]

In succeeding years his right of privacy concepts gained powerful disciples who relied on his dissenting opinion: Justice Frank Murphy, in 1942, used his Harvard Law Review article in writing an opinion for the Court; a few years later, Justice Felix Frankfurter referred to the Fourth Amendment as the “protection of the right to be let alone,” as in the 1947 case of Harris v. U.S., where his opinion wove together the speeches of James Otis, James Madison, John Adams, and Brandeis’s Olmstead opinion, proclaiming the right of privacy as “second to none in the Bill of Rights[11]:26

Again, five years later, Justice William O. Douglas openly declared that he had been wrong about his earlier tolerance of wiretapping and wrote, “I now more fully appreciate the vice of the practices spawned by Olmstead. . . I now feel that I was wrong . . . Mr. Justice Brandeis in his dissent in Olmstead espoused the cause of privacy – the right to be let alone. What he wrote is an historic statement of that point of view. I cannot improve on it.”[33]:445 And in 1963, Justice William J. Brennan, Jr. joined with these earlier opinions taking the position that “the Brandeis point of view” was well within the longstanding tradition of American law.[11]:26

However, it took the growth of surveillance technology during the 1950s and 1960s and the “full force of the Warren Court’s due process revolution,” writes McIntosh, to finally overturn the Olmstead law: in 1967, Justice Potter Stewart wrote the opinion overturning Olmstead in Katz v. U.S. McIntosh adds, “A quarter-century after his death, another component of Justice Brandeis’s privacy design was enshrined in American law.”[11]