Forbearance to Sue and Forbearance to Defend
| Author | J. M. Kelly |
| DOI | http://doi.org/10.1111/j.1468-2230.1964.tb02241.x |
| Date | 01 September 1964 |
| Published date | 01 September 1964 |
FORBEARANCE
TO
SUE
AND FORBEARANCE
TO
DEFEND
IT
is an orthodox doctrine that consideration for a promise must
consist either in a detriment to the promisee
or
in an advantage
to
the promisor, though these two elements are nearly always merely
different aspects of the same thing.‘ A slightly different emphasis
appears in Pollock’s definition, whereby
‘‘
an act
or
forbearance of
one party,
or
the promise thereof, is the price for which the promise
of the other is bought, and the promise thus given for value is
enforceable.”
*
Among the detriments which have been recognised in a long
series of cases as valuable consideration for a promise is the
detriment consisting in the forbearance to exert a legal right; and
one type of such a detriment is the forbearance of an actual
or
intending plaintiff to pursue his claim. Cheshire and Fifoot say
8
that
“
in the modern law, the consideration in such cases is said to
be the surrender, not of a legal right, which may
or
may not exist
and whose existence, at the time of the compromise, remains
untested, but of the
claim
to such a right.” Not every surrender
whatsoever
will
do, according
to
these (and other) authors; they go
on to suggest that
‘‘
a plaintiff who relies upon the surrender of a
claim to support a contract must prove (i) that the claim is
reasonable in itself, and not vexatious
or
frivolous;
(ii)
that he
himself has an honest belief in the chance of its success; and (iii)
that he has concealed from the other party
no
fact which, to his
knowledge, might affect its validity.” These qualifications are said
to result from the judgments in
Callisher
v.
Bischot7sheim4
and
Miles
v.
N.Z.
Alford
Eatate
CO.~
These discussions, like the cases upon which they are based,
concentrate on the position of a
plaintifl
or
intending
plaintitf
who
furnishes consideration by forgoing his claim; one might have
expected, on turning to the pages immediately following in the
textbooks, to find the respective authors dealing with the position
of a
defendant
who does the same thing by forgoing his defence,
and one might have expected to read that,
mutatis mutandis,
the
same principles and the same qualifications would apply. But in
fact the subject of forbearance to defend is not to be found
separately treated in English textbooks on contract at all; and when
cases are dealt with, in which a defendant has
in fact
forborne his
1
”reitel, The
Law
of
Contract, p.
41.
2
Pollock OR Contracts,
13th
ed.,
p.
133.
8
The
Law
of
Contract,
6th
ed.,
pp.
70-71.
4
(1870)
L.R.
B
Q.B.
449.
5
(1886)
32
Ch.D.
266.
540
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