Natural Love & Affection - Consideration?

Can natural love and affection become adequate consideration so as to enforce a promise?

What is consideration?

Consideration is an important element of a contract. It can be anything of value which each party must agree to exchange in order to make a contract valid.

Example:

Azeel signs a contract to buy a bungalow in Bukit Jelutong from Fozi for RM 300,000. Azeel's consideration is the RM 300,000 and Fozi's consideration is the bungalow.

Consideration within the meaning of Malaysian contract law

Section 2(d) Contract Act 1950:-

“When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do so or to abstain from doing something, such act or abstinence or promise is called consideration of the promise”

Adequate consideration

Adequate consideration refers to a price which is equal in value for an act or thing which is given in exchange. The price can be in the form of money, property, service, and promise to do or not to do an act.

Example:

Norshafiika promises to sell Husna a diamond-studded cellphone worth RM 60,000 if Husna agrees to sew her an elaborate silk evening gown worth RM 60,000 in exchange. This is an adequate consideration.

Should consideration be adequate?

Consideration need not be adequate but it must not be illusionary, legally or physically impossible, or ambiguous.


Consideration need not necessarily move from the promisee

In English law, consideration must move from the promisee i.e. the person who receives the promise must himself give something in return. In Malaysia a party to an agreement can enforce a promise even though he has given no consideration, so long as somebody else has done so.

Example:

Nadiah promises to pay Hayatul RM 1,000 if Latif will paint Nadiah's house. Latif paints Nadiah's house but Nadiah does not pay Hayatul the RM 1,000 as promised. Even though it is Latif and not Hayatul who has given consideration for Nadiah's promise, Hayatul may institute legal proceeding against Nadiah to enforce the promise.

Exception to the general rule

An agreement without a valid consideration is void. However, there remains certain areas where contract is made without consideration and law may treat such a contract as valid. Natural love and affection is one such area where a contract without consideration is treated as valid. In such cases natural love and affection is treated as good consideration. This is an exception to the general rule.

The principle in the case of Brett v JS & Wife [1600] 79 ER 9 & 7 illustrates that natural love and affection are not recognized as valid consideration under English law. This is contrary to Malaysian contract law where natural love and affection, unless they are not in writing and registered under the law in accordance to Section 26 (a) Contract Act, are valid consideration.


What is defined as 'natural love and affection'?

Re Tan Soh Sim & Ors v Tan Saw Keow [1951] MLJ 21 is a Malaysian case which judicially construed the meaning of 'natural love and affection'.

In this case, a woman on her deathbed expressed her intention to leave all her properties to her four adopted children. The court held that the claims of the adopted children were not effective as it was contrary to Section 26(a) - that it was not in writing, and there was no natural love and affection between parties standing in near relation to each other, since the four children were adopted and did not have natural relations (blood ties) to that woman.