Past Consideration

Meaning of Past Consideration

Past consideration refers to an act, service, or abstinence that has already been performed at the desire of the promisor, before the promise for which it is treated as consideration is made.

Under Section 2(d) of the Indian Contract Act, 1872, an act that has already been done at the desire of the promisor can constitute consideration for a subsequent promise.

In simple terms:

Past Consideration = Act already performed at the promisor’s desire + Subsequent promise

Example

A asks B to repair his shop. B repairs the shop at A’s request.

After the repair is completed, A promises to pay B ₹20,000.

Here, the repair was already completed before A made the promise. Since B performed the work at A’s desire, the completed act can constitute past consideration for A’s promise.

Statutory Basis: Section 2(d)

Section 2(d) expressly includes an act that:

• has already been done;
• was done at the desire of the promisor; and
• is treated as consideration for the promise.

This is an important feature of Indian contract law because past consideration can be valid consideration in India.

The important phrase is:

“At the desire of the promisor”

An act performed voluntarily, without the promisor’s request or desire, does not automatically become valid past consideration merely because the promisor later promises to pay for it.

Essentials of Past Consideration

1. The act must have already been performed

The relevant act or service must have been completed before the subsequent promise is made.

For example:

B repairs A’s machine at A’s request.

Later, A promises to pay B ₹10,000.

The repair is already completed when the promise is made, making it past consideration.

2. The act must have been done at the desire of the promisor

This is the most important requirement.

The act must have been performed because the promisor requested or desired it.

For example:

A asks B to construct a wall. B constructs the wall. A subsequently promises to pay B ₹50,000.

The construction was performed at A’s desire.

Therefore, it can constitute consideration for A’s promise.

3. The act must have legal value

The act must be something recognized by law as capable of constituting consideration.

A purely moral act or something having no legal value cannot automatically become consideration simply because a later promise is made.

4. The act must be lawful

The consideration must satisfy the requirements of lawful consideration under Section 23.

An act connected with an unlawful object or unlawful consideration cannot support an enforceable contractual promise.

5. The subsequent promise must be connected with the earlier act

The promise should be made in relation to the act already performed.

For example:

A requests B to provide a particular service. B performs it. A subsequently promises to pay B for that service.

The connection between the earlier act and the later promise is clear.

Past Consideration vs Voluntary Act

This distinction is extremely important.

Act at Promisor’s Desire

A asks B to repair his vehicle.

B repairs it.

A later promises to pay ₹5,000.

The repair can constitute past consideration.

Voluntary Act

B sees that A’s vehicle is damaged and repairs it without being asked.

A later promises to pay B ₹5,000.

The earlier repair was not performed at A’s desire. Therefore, it does not automatically constitute consideration under Section 2(d).

Thus:

Past in time does not itself make an act past consideration.

The act must also have been performed at the desire of the promisor.

Durga Prasad v. Baldeo

Durga Prasad v. Baldeo (1880)

This is an important Indian case for understanding the requirement that consideration must move at the desire of the promisor.

The plaintiff had constructed a market at the request of the Collector. Certain shopkeepers later promised to pay him commission.

The court held that the construction was not consideration for the shopkeepers’ promise because the construction had not been undertaken at their desire.

Principle

An act performed at the request of a third person, rather than at the desire of the promisor, does not ordinarily constitute consideration for the promisor’s subsequent promise.

This principle is particularly useful when analyzing alleged past consideration.

Past Consideration and Section 25

Past consideration should not be confused with the Section 25 exception relating to voluntary services.

Section 25 provides an exception where a person promises to compensate another for something that the latter has already voluntarily done for the promisor.

For example, A voluntarily finds B’s lost purse and returns it. B later promises to pay A ₹5,000.

Such a promise may fall within the specific statutory exception in Section 25, subject to its requirements.

This is different from ordinary past consideration under Section 2(d), where the earlier act was performed at the desire of the promisor.

Important Distinction

Section 2(d):

Act was performed at the desire of the promisor.

Section 25(2):

Promise to compensate for a past voluntary act may be enforceable under the statutory exception.

Therefore, the two situations should not be treated as identical.

Past Consideration in Indian and English Law

Indian law differs from the traditional English position on past consideration.

Under the Indian Contract Act, Section 2(d) expressly recognizes an act already done at the desire of the promisor as consideration.

Therefore, past consideration can be valid in India when the statutory requirements are satisfied.

This is an important distinction for law examinations.

Examples of Past Consideration

Example 1: Repair Service

A asks B to repair his office equipment.

B repairs it.

A subsequently promises to pay ₹15,000.

The repair is past consideration.

Example 2: Requested Assistance

A asks B to arrange transportation of certain goods.

B makes the necessary arrangements.

Afterwards, A promises to pay B ₹10,000.

The service may constitute past consideration because it was performed at A’s request.

Example 3: No Promisor’s Desire

B voluntarily cleans A’s shop without being asked.

A later promises to pay B ₹5,000.

The cleaning does not ordinarily constitute past consideration under Section 2(d), because it was not done at A’s desire.

Past Consideration vs Present Consideration

Basis	Past Consideration	Present Consideration
Timing	Act performed before the promise	Performance occurs immediately with the transaction
Nature	Already performed	Immediately executed
Example	B repairs A’s machine at A’s request; A later promises payment	A pays ₹10,000 and B immediately delivers goods
Indian law	Recognized under Section 2(d), subject to requirements	Recognized
Key requirement	Earlier act must be at promisor’s desire	Immediate exchange/performance

Past Consideration vs Future Consideration

Basis	Past Consideration	Future Consideration
Timing	Act already performed	Performance is promised for the future
Position of parties	One act has already occurred	Obligations remain to be performed
Example	B already repairs A’s machine; A later promises payment	A promises to deliver goods next month and B promises future payment
Also called	Past consideration	Executory consideration

Is Past Consideration Always Valid?

No.

Past consideration is valid only when the requirements of Section 2(d) are satisfied.

An earlier act will not become valid consideration merely because:

• it benefited the promisor;
• the promisor later promised payment; or
• the act was morally desirable.

The critical question is whether the act was performed at the desire of the promisor and otherwise satisfies the requirements of lawful consideration.

Important Points for Exams

1. Past consideration is an act or abstinence already performed before the promise.
2. It is recognized under Section 2(d) of the Indian Contract Act, 1872.
3. The act must have been performed at the desire of the promisor.
4. Past consideration can be valid in India.
5. A purely voluntary act is not automatically past consideration under Section 2(d).
6. Consideration must be lawful and have legal value.
7. Durga Prasad v. Baldeo is important for the requirement of the promisor’s desire.
8. Section 25(2) separately deals with certain promises to compensate for past voluntary services.
9. Past consideration should not be confused with present or future consideration.

Quick Revision

Meaning: Consideration based on an act already performed.

Main provision: Section 2(d)

Essential requirement: Act must have been done at the desire of the promisor

Example: B repairs A’s machine at A’s request; A later promises payment.

Leading case: Durga Prasad v. Baldeo (1880)

Indian position: Past consideration can be valid.

Important distinction: A voluntary act is not automatically past consideration under Section 2(d).

Conclusion

Past consideration is an important form of consideration recognized by Indian contract law. Under Section 2(d) of the Indian Contract Act, 1872, an act already performed can constitute consideration for a subsequent promise when it was performed at the desire of the promisor and satisfies the other requirements of valid consideration. The key distinction is between an act performed at the promisor’s request and a purely voluntary act. Durga Prasad v. Baldeo is particularly important for understanding this principle.