Rules of consideration

1. Consideration must move at the desire of the promisor: The first important rule of consideration is that the act or forbearance must be done at the desire or request of the promisor. If it is done without his request or at the request of a third party, it will not be a valid consideration. It is very simple that unless a person offers to do something, how can he be made liable to pay for that? Example: A polished B's car without any request from B. Is B liable? Obviously not, as the polish on B's car was done without his request. You will observe that if a person is made liable for acts done without his request, it will almost be impossible for him to pay every person who does an act for him. Let us take another example. D made certain improvements in the market at the request of the District Collector. The shopkeepers agreed to pay commission to D on the articles sold in the market. Later on, B refused to pay the commission. The court held that the agreement was without consideration because the improvement was not made at the request of B but at the request of the District Collector. Hence it was void, being without consideration and B was not liable to pay any commission. 2. Consideration may move from the promisee or any other person: It means that the act or forbearance may be done by the promisee himself or any other person on his behalf. In other words, consideration may be given by the promisee or any other person on his (promisee's) behalf. Example: A father gifted the whole of his property to his daughter on the condition that she should pay an annuity (annual payment) to her uncle (Father's brother). On the same day, the daughter entered into an agreement with her uncle and agreed to pay the annuity. Later on, the daughter refused to pay on the ground that the uncle did not give any consideration to her. The court held that the consideration was paid by the father on behalf of her uncle. Therefore, the uncle was entitled to recover the annuity. [Chinayya v. Ramayya.] Thus from the above discussion, it should be clear that a stranger to consideration can file a suit to enforce his right. Under English Law, however, consideration must move from the promise and not from any other person. It means that under English Law, a stranger to consideration cannot file a suit to enforce his right. 3. Consideration may be past, present or future:

The words, "has done", "does" or "promises to do" indicate respectively that the consideration may be past, present or future. (i) Past Consideration: Where the act was done in the past or the promisor had received the consideration before the date of the promise, it is called a past consideration. Example: A found B's purse. After a month B promised to pay Rs. 5 to A as reward for the service rendered. B is paying Rs. 5 for past consideration. Under English Law, a past consideration is no consideration. (ii) Present Consideration: Where the act is done in the present or the promisor receives the consideration along with his promise, the consideration is present consideration. It is also called an executed consideration. Example: A purchases goods by paying money in cash. Here, the consideration is present consideration. (iii) Future Consideration: It is also called executory consideration. Where the act is to be done in future or the promisor is to receive consideration after the date of promise, it is a future consideration. Example: A agrees to sell his watch for Rs. 200 to B the next week. It is a case of future consideration. It should be noted that consideration for one party may be past, and for the other, it may be present or future. Example: A found B's purse last week. B promises to pay Rs. 5 the next week. For A, the consideration is future and for B, it is past. 4. Consideration must be real and not illusory: Consideration must be real, i.e, it has some value in the eye of law. It should not be illusory. Example:

A promised to pay Rs. 100 extra to a doctor for performing a successful operation. The promise of paying Rs. 100 extra in this case is illusory as the doctor is already bound to do his best for the patient. The following have been regarded as good consideration: (i) Forbearance to sue: It has been pointed out earlier that consideration may be positive or negative. Negative consideration implies forbearing some right. Thus forbearance to sue a debtor can be a good consideration. Example: 'A's Scooter is damaged by B negligently driving his car. B promises to pay Rs. 100 as repair charges for the scooter if A does not sue him in a court of law. Here, A's forbearance to sue B is a good consideration. It should be noted that forbearance to sue must be for a lawful act or existing and lawful liability. Example: A murders B's son. A promises to pay Rs. 5,000 to B if he does not report the matter to the police. It is not good consideration as forbearance to sue in this case is not for a lawful act but an illegal act, which is punishable by law." (ii) Compromise or composition of claims: Compromising bonafide disputed claim is a good consideration. In fact, it is also a kind of forbearance on the part of the creditor. For example, a creditor agrees to accept less than what is actually due to him. However, the claim should be bonafide. If the claim turns out to be frivolous or unfounded, the consideration will fail and the debtor would be entitled to refund of the amount paid by him. 5. Consideration must not be something which the promisor is legally bound to do: A promise to do something which a person is legally bound to do is not a good consideration. As such, preexisting legal and contractual obligations cannot be regarded as good consideration. Example: A promised to pay Rs. 100 extra to a lawyer for winning the suit. A is not bound to pay Rs. 100 even if he wins the case as the lawyer was duty bound to do his best to win the case. Payment of one hundred rupees extra in this case is not a good consideration as it was a promise to do something which the lawyer was legally bound to do.

6. Consideration must not be illegal, impossible, uncertain, ambiguous, fraudulent, immortal or opposed to public policy: The law does not compel anybody to do something illegal, impossible, immortal or opposed to public policy. On the countrary, the law punishes a person who does something illegal, immortal or opposed to public policy. (i) Illegal Consideration: Illegal consideration means doing an act which is prohibited by law. Example: A promises to pay B Rs. 500 if he bears C. It is illegal. (ii) Impossible consideration: Impossibility may be physical or legal. In both the cases, the consideration would not be a good consideration. Example: (1) A promises to pay B Rs. 500 if two parallel straight lines meet each other. It is physically impossible and therefore void. (2) A promises to pay B Rs. 1,000 if he can get him a smuggled Television set. It is legally impossible and therefore void. (iii) Uncertain consideration: A promises to pay an uncertain amount is not a good consideration. Example: A promise to pay B an amount to his satisfaction if he cures his son. It is not certain as to what amount is payable. It is void. (iv) Immoral consideration: Immoral consideration means an act against positive morality as recognized by law. Example: A lets out his house to a prostitute. A cannot recover the rent as consideration is immoral. 7. Consideration need not be adequate:

It is not necessary that there must be full return for the promise. There must be something rather than nothing. For example, A agrees to sell his watch worth Rs. 100 only for Rs. 10. A's consent to the agreement was given freely. The agreement is enforceable even though the watch is being sold for just one-tenth of its price. The law has left the quantum of consideration to be decided by the respective parties. Hence the law will not object to the inadequacy of consideration. The law will not enforce a promise only if it is without consideration. However, inadequacy of consideration may be taken into account by the Court in determining the question whether the consent of the promisor was given freely, i.e., it was not caused by coercion or undue influence, etc. Hence in the absence of any such thing, the Court will not object to the inadequacy of consideration. Therefore, in many cases it has been remarked well, "the doctrine of consideration is a mere technicality irreconcilable either with business expediency or common sense."

Exceptions to Consideration (No Consideration and No Contract)

Sudhir Singh The general rule of law is "no consideration, no contract", i.e., in the absence of consideration there will be no contract. However, the law recognizes the following exceptions to the rule of consideration. The exceptions have been given in Sec. 25 of the Indian Contract Act. In these cases, agreements are enforceable even if these have been made without consideration. 1. A promise made out of material love and affection. [Sec. 25]: An agreement expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection, between parties standing in a near relation to each other, is enforceable without consideration. Example: A agreed to pay Rs. 5000 to his younger brother out of natural love. This promise is in writing and registered. If A refuses to pay Rs. 5,000 to his younger brother, the latter can enforce the promise in the Court and A cannot refuse payment on the ground of absence of consideration. It should be noted that all the four conditions must be satisfied only then it will be valid without consideration, otherwise not. Example: An agreement was made between a husband and his wife after referring to quarrels to pay maintenance allowance. The court held that the agreement was not enforceable as it Was not made out of natural love and affection and hence it was void being without consideration. [Rejlukhy v. Bhoothnath]

It should be noted that nearness of relation does not necessarily mean that the agreement has been made out of natural love. 2. A promise made to compensate for voluntary services [Sec. 25]: A promise to compensate, wholly or in part, a person who has voluntarily done something for the promisor, or something which the promisor was legally compellable to do, is enforceable without consideration. This rule, in fact, recognizes past consideration which was given without request or desire of the promisor. Example: A found B's purse and gave it to him. B promised to pay a reward of Rs. 50 to A. Later on, B cannot refuse payment on the ground that there was no consideration. 3. Written promise to pay a time-barred debt [Sec. 25(3)]: A promise made in writing to pay a debt barred by the Law of Limitation is enforceable even without consideration. Example: A owes B Rs. 1,000 but the debt is barred by the Limitation Act. A signs a written promise to pay B the sum of Rs. 1,000. This is a valid contract. 4. Gift, etc. actually made: Explanation I to Section. 25 provides that any gift actually made is valid. Example: A gave a watch as a gift to B on his birthday. Later on, A cannot demand his watch (gift) back on the ground that there was no consideration (as A did not get anything in return for the watch). 5. To create agency: Under Sec. 185, no consideration is necessary to create an agency. Actually speaking, consideration is there even in an agency in the sense that the principal has agreed to be bound by the acts of the agent. Thus he undertakes the responsibility of the agent. We have seen earlier in Currie v. Misa's case that suffering responsibility is a good consideration.

Short notes on Discharge of Contract Consiquency

Sudhir Singh Discharge of contract means termination of the contractual relationship between the parties. When the rights and obligations arising out of a contract are extinguished, the contract is said to be discharged. A contract may be discharged either by the acts of the parties or the operation of law. Act of parties may take different forms like performance, agreement, breach, etc. while operation of law includes death, insolvency, etc. A contract may be discharged in any of the following ways: 1. By performance, 2. By death, 3. By Lapse of time, 4. By Breach of Contract, 5. By Impossibility, 6. By agreement or consent, and 7. By operation of law. 1. Discharge by Performance: This is most pleasant end of a contract when a contract is duly performed by both the parties and nothing more remains to be done. But if only one party performs his promise, he aloes is discharged and the guilty party may be taken to the task for breach of contract. The performance may be, either actual or attempted i.e. tender. Actual performance must be complete, precise and according to the terms of the agreement. Most of the contracts are performed in this manner. Where a promisor has made an offer of performance (tender), and the offer has not been accepted, the promisor is not responsible for non-performance, nor does he thereby lose his rights under the contract. If there are several joint promisors, the offer of performance to any one of them shall be sufficient. Performance shall be given by the promisor himself, in contracts requiring use of personal skill, e.g. painting, dancing or promise to marry, etc. In such a case death of the promisor puts an end

to the contract. Unless a contrary intention appears from the contract, a promise can be enforced against and only by the legal representatives of the parties. Ordinarily, parties must perform their obligations at the stipulated time. But if the time is of the essence of the contract, then a failure to perform at the time specified, renders the contract voidable at the option of the opposite parties. 2. Discharge by Death: Contracts of a personal nature come to an end by the death of the promisor. In other cases the rights and liabilities pass on to the legal representatives of the deceased. But they are liable to the extent of the property inherited by them. 3. Lapse of Time: The limitation act provides that a contract should be performed within a specified period i.e. period of limitation. If the contract is not performed, and if no legal action is taken by the promisee within the period of limitation, he is deprived of his remedy at law. In other words, the contract in such a case is terminated. For example, for the price of goods sold and delivered, where no fixed period of credit is agreed upon, the payment should be made or a suit instituted to recover it within 3 years from the date of delivery of the goods. If the payment is not made and the creditor does not file a suit against the buyer for the recovery of the price within the period of 3 years, the debt becomes time-barred and irrecoverable. 4. Breach of Contract: Breach of contract means refusal of performance by a party. Where a party to a contract has refused to perform, or disabled himself from performing his promise in its entirety, the other party or aggrieved party may put an end to the contract unless he has waived his right expressly or impliedly. For instance, X, a singer enters into a contract with Y to sing at his theatre every night during next month. Y agrees to pay him Rs. 250 for each night. On the 10th night, X willfully absents herself from the theatre. Y can put at an end to the contract. Breach of contract may be of two kinds; (1) Anticipatory breach; and (2) Actual Breach. 'Actual Breach' occurs when a party fails to perform his obligation upon the date fixed for performance by the contract, as for example, where on the appointed day, the seller does not deliver the goods or the buyer refuses to accept the delivery. It is to be noted that actual breach of contract due to non performance can only arise when the time for performance has arrived. Actual breach entitled the party not in default to elect to treat the contract as discharged and to sue the party at fault for damages for breach of contract. Anticipatory breach of Contract:

Anticipatory breach of contract takes place before the date of actual performance. The promisor may either inform the promisee that he will not perform the contract or may do an act which is inconsistent with the contract or renders the performance impossible. For example, A agrees to employ B as a clerk, the service to commence from 2nd February, 1989. On 27th January, 1989, he informs B that his services will not be required. This is an 'anticipatory breach of contract' by expressing repudiation by A. Similarly, A promises to marry B on 'Kartiki Purnima 1989' but before this date, A marries C. Here A's voluntary act has made the performance of his obligation towards B impossible, and therefore 'anticipatory breach by impossibility" is committed by A. Section 39 deals with anticipatory breach of contract. Accordingly, "when a party to a contract has refused to perform or disabled himself from performing his promise in its entirety, the promisee may put an end to the contract, unless he has given by words or conduct, his acquiescence in its continuance". But if the promisee acquiesces in the continuance, by conduct or words of mouth or condones breach of contract or waives his rights, then the contract continues. Consequences of Anticipatory Breach : When anticipatory breach takes place, the aggrieved party can take the following steps: (i) He may either treat the contract as rescinded or sue the other party for damages for breach of contract immediately without waiting until the due date of performance i.e. he can file a suit for damages or specific performance or injunction, etc. Huckster vs De La Tour. In that case, the defendant agreed to engage the plaintiff as his attendant on a continental tour from June 1st, for 3 months at a salary of $10 per month. The defendant then changed his mind and wrote to the plaintiff before that date, that he would not require his services. It was held that the plaintiff can put an end to the contract even before June 1st, and bring a suit for damages. He was not bound to wait till the date of performance. Forst vs Knight. In that case, K promised to marry F after the death of his father. When the father was still living, K announced his intention of not fulfilling the promise on his father's death and broke all the engagements. F without waiting for the father's death at once brought an action against the breach of a contract. It was held that F could claim damages. (ii) He may treat the contract as still operative and subsisting and wait for the time of performance, when the contract is to be executed, and then hold the other party liable for the consequences of non-performance. If this course is adopted, the contract remains alive upto the due date. The promisor may in such a case change his mind and perform the contract. But if in the intervening period, any supervening impossibility happens which discharges the contract legally, the repudiating party can take advantage of such eventuality and the aggrieved party loses his right to sue for damages.

Avery vs. Bowden. In that case, B chartered A's ship and agreed to load it with a cargo at Odessa within 45 days. When the ship reached Odessa, B was unable to supply the cargo. A did not accept the refusal and continued to demand the cargo. Before the expiry of 45 days, the Crimean War broke out rendering the performance of the contract impossible. Held, the contract was discharged and A could not sue for damages. 5. Impossibility of Performance: A contract must be capable of being performed. Section 56 provides "agreement to do an act impossible in itself is void". This rule is based on two principles: 1. Lex non cogit ad impossibilia i.e. Law does not recognize the impossible. 2. Impossibilia nulla obligation east i.e. An impossible act does not create any obligation. Impossibility discharges the parties to a contract. Even if the act becomes impossible after formation of contract, the contract is rendered void. Impossibility falls in the following two categories: 1. Initial Impossibility: Initial impossibility means impossibility at the time of formation of the contract. It may be known or unknown to the parties. If impossibility is known to the parties, the agreement is void ab initio. But where the impossibility is known to the parties, the contract would become void because of mutual mistake of fact whenever such impossibility is discovered. 2. Subsequent Impossibility: Sometimes a contract is capable of being performed when entered into, but some subsequent event renders the performance impossible. In such a case also, the contract become void. The subsequent impossibility may arise (i) by some event beyond the control of the parties, or (ii) by some act of the promisor or promisee. Doctrine of Supervening Impossibility : In certain circumstances, subsequent impossibility makes the contract void. Supervening impossibility is an excuse for the non-performance of a contract in such cases. These cases are as follows: 1. Destruction of subject matter of the contract: Where the subject -matter of the contract is destroyed before the contract is performed the contract is discharged.

Howell vs Coupland. In that case, C contracted to deliver a specific crop of potatoes. The crop was destroyed by a pest through no default of the party. It was held that the contract was discharged. V.L. Narasu vs. P.V.S. Iyer. In this case, a contract was entered into between a purchaser and a theatre owner to show a picture at the latter's theatre for a particular period and share the profits. The theatre subsequently had to be demolished on account of the authorities declaring it to be defective and unsafe. The theatre owner had no knowledge of the defective and unsafe condition of the building, and on account of demolition, the show was interrupted. It was held that the continued existence of the theatre was a fundamental basis of the contract and there was a frustration of that fundamental character. As such, the contract was held to be discharged. Taylor vs. Caldwell. A music hall was agreed to be let out for a series of concerts on certain days. The hall was destroyed by fire before the date of the first concert. The plaintiff sued the defendant for damages for the breach of contract. It was held that the contract had become void and the defendant was not liable. Teatem Ltd. vs. Gamboa. It was decided that, if a factory premises on which machinery is to be installed is destroyed by fire, or a ship under a charter party is seized by a foreign government, the contract is discharged. 2. Death or personal incapacity of the parties: Where the performance of the contract depends on the personal skill or qualification of a party, the contract is discharged on the illness or incapacity or death of that party. The man's life is an implied condition of the contract. Robinson vs. Davison. In this case, an artist undertook to perform at a concert for a certain price. Before she could do so, she was taken seriously ill. It was held that she was discharged due to illness. Similarly, in a case, two parties contracted to marry each other. Before the time fixed for marriage, a party became mad. The contract becomes void in such case due to the personal incapacity of the parties. 3. Change of law: A subsequent change in law may render the contract illegal and in such cases, the contract is deemed discharged. The law may actually forbid the doing of some act undertaken in the contract, or it may take from the control of the promisor something in respect of which he has contracted to act or not to act in a certain way. Nor Bux vs. Kalyan, A.I.R. A agreed to transport goods of B from place X toY. Subsequently, the trucks of A were requisitioned by the Government under a statutory power. Here the contract was discharged due to change in law.

Shipton Anderson & Co. vs. Reschipto. A specific parcel of wheat was sold in a warehouse. Before the delivery was given, the wheat was requisitioned by the Government under statutory power. 4. Declaration of War: Contracts entered into during war with an alien enemy are void abinitio. When peace returns, they remain still void and of no effect. But contracts entered into before the declaration of war, remain suspended during the continuance of war, if it is for a short period and may be revived and enforced at the end of the war. But if war continues for a sufficiently longer period of time and the party would be discharged from performance on the ground of impossibility. 5. Non-existence or non-occurrence of particular state of things: If a contract is entered into on the basis of the continued existence of a certain state of things, the contract is discharged, if the state of things changes or ceases to exist. Krell vs. Henry. Henry hired a room from Krell for two days to witness the coronation procession of King Edward VII. He knew the object of the contract, the procession was cancelled. It was held that Henry was excused from paying rent for the room, as the existence of the procession was the basis of the contract and its abandonment discharged the contract. Cases not Covered by Supervening Impossibility : It may be stated that impossibility to perform arising subsequently to the agreement will not, as a rule, relieve the promisor from performing his part in all cases, because "where there is a positive contract to do a thing, not in itself unlawful, the promisor must perform it or pay damages for not doing it, although in consequence of unforeseen accidents, the performance of his promise has become unexpectedly burdensome or even impossible". Thus, in order to excuse a person from the performance of a contract, there must be physical or legal impossibility. In the following cases a contract is not discharged on the ground of supervening impossibility. 1. Difficulty of Performance: A contract is not discharged merely because its performance has become difficult, or more expensive or less profitable than stipulated at the time of its formation. As a rule, difficulty is no excuse from performance. Blackburn Bobbins Co. Ltd. vs. Allen & Sons. In this case, A sold a certain quantity of Finland timber to B to be delivered between June and September, 1914. No deliveries were made before August when war broke out and transport was disorganized so that A could not bring any timber from Finland. Held, impossibility of getting timber from Finland could not excuse performance of the contract as B was not concerned with the way in which A was going to get timber from Finland. 2. Commercial Impossibility:

Again, a distinction has to be made between absolute impossibility and commercial impossibility. Commercial impossibility means that the performance of the . contract is not impossible but it has only become costlier in terms of money or labour. A contract is not discharged merely because expectation of higher profits is not realized, or the necessary raw material is not available at normal rates because of the outbreak of war, or there is sudden depreciation of currency. Karl Etlinger vs. Chagandas & Co. promised to send certain goods from Bombay to Antwerp in September. Before the goods were sent, war broke out and there was a sharp increase in shipping rates. Held, the contract was not discharged. Sachindra vs. Gopal. A contracted to supply certain goods to B. Due to the outbreak of war, the market price of the goods suddenly shot up. Held, A is not discharged from performance of the contract merely because the outbreak of the war has rendered the contract unprofitable. Davis Contractors Ltd. vs. Fareham. In that case there was a contract to build 78 houses for a council for a fixed price of Rs. 94421 and to be completed with 8 months. Due to labour strikes and shortage of certain materials, it took 22 months to complete instead of 8 months and at a cost of Rs. 115000. The contractor contended that the contract has been frustrated and that they were entitled to a claim on a quantum merit for the cost actually incurred by them. It was held that the performance of the contract was more onerous but did not discharge the agreement. 3. Failure of third party relied upon by the promisor: Where a contract could not be performed because of the default by a third party on whose work the promisor relied, it is not discharged. Harnadrai Fulchand vs. Pragdas. A, a wholesaler, entered into a contract with B for the sale of a certain types of cloth to be produced by C, a manufacturer of that cloth. C did not manufacture the cloth. Held, A was liable to B for damage. Allopi Parshad vs Union of India. In that case, A was acting as the agent of the Government of India for purchasing edible oils for the use of Army personnel. The rates were fixed by the Government of India for the supply of the edible oils. During the period of performance of the contract, Second World War broke out, and there was abnormal rise in price. A demanded revision of supply rates but received no response. He kept that A was entitled to claim only the supply rates contracted for and nothing more than that. 4. Strikes, Lock-outs, Riots, Civil disturbances etc: A strike by the workmen or a lockout by the employer also does not excuse performance because the former is manageable (as labour is available otherwise) and the latter is self induced. Where the impossibility is not absolute or where it is due to the default of the promisor himself, section 56 would not apply. As such, these events also do not discharge a contract.

Hari Laxman vs. Secretary of State for India. The lessor of certain salt pans, failed to repair them according to the terms of the contract, on the ground of a strike of the workmen. It was held that a strike by the workmen was not sufficient reason to excuse performance of a term of the contract. Jacobs vs. Credit Lyonnais. In that case, a contract was entered into between two London merchants for the sale of certain goods which are to be imported from Algeria. Due to riots and civil disturbances in Algeria, the goods could not be imported. Held, this was no excuse for nonperformance of a term of the contract. Budgett vs. Binnington. The unloading of a ship was delayed beyond the date agreed with the ship-owners owing to a strike by dock workers. It was held, that the ship-owners were entitled to damages, the impossibility of performance being no excuse. 5. Partial impossibility: When a contract is entered into for several objects, the failure of one of them does not discharge the contract. H.B. Steam Boat Co. vs. Hutton. In that case, the Steam Boat Co. agreed to let a boat to H to view, (i) the naval review at the coordination of Kind Edward VII, and (ii) to cruise round the fleet. Due to the illness of king, the Naval review was cancelled, but the fleet was assembled and the boat could have been used to cuisse round the fleet. Held, the contract was not terminated as the naval review was not the sole basis of the contract. 6. Doctrine of Frustration: Under the English Law, where the object of a contract can no longer be carried out, the contract is said to be frustrated and the parties are discharged. Thus for impossibility of performance the term 'frustration' is used in the English law. This concept was explained in the case of 'Cricklewood Property Limited vs. Leighton's Investment Trust Ltd', in the following words: "Frustration may be defined as the premature determination of an agreement between parties lawfully entered into.................. owing to the occurrence of an intervening event or change of circumstances so fundamental as to be regarded by the law as striking at the roots of the agreement, and as entirely beyond what was contemplated by the parties when they entered into the agreement." Paradine vs Jane Aleyn. In that case, P leased a plot of land to J. P sued J for rent due upon the lease. J pleaded "that a certain Prince, an alien enemy to the king and Kingdom had invaded the realm with an hostile army of men, did enter upon J's possession and expelled him and held him out of possession of the property, whereby he could not take the profits." The plea was that the rent was not due because the lessee had been deprived, by event beyond his control, of the profits from which the rent should have been given.

The Court held that this was no excuse. It was observed that "where the party by his own contract creates a duty or charge upon himself, he is bound to make it good.............................

In Taylor vs. Caldwell, also the Court observed that "where there is a positive contract to do a thing, not in itself unlawful, the contractor must perform it or pay damages for not doing it although in consequence of unforeseen events, the performance of his contract has become unexpectedly burdensome or even impossible". Thus, impossibility was no defence to an action for breach of contract. According to the implied Terms theory', a Court can infer implied terms or conditions in a contract and the surrounding circumstances that a condition, which was not expressed was the foundation upon which the parties contracted, and if that condition is not fulfilled, the promisor is excused from performance. [F.A. Tamplin Steamship Co. Ltd. vs. Anglo Mexican Petroleum Products Co. Ltd.].