What may serve to distinguish a gratuitous promise from a promise enforceable in law is the fact of an express or implied request. Thus, if there is a promise to pay money or to do some act or to forbear from doing a particular thing in circumstances in which there has been no request to make the payment or do the act etc, the promise is likely to be regarded as gratuitous and unenforceable, unless there is evidence of reasonable reliance on the promise (see below, p 136). A further important factor in determining whether a promise is enforceable is whether or not it has been acted upon. A key feature of much of Atiyah’s work is that the paradigm 19th century model of promissory liability is premised on the belief that a set of purely executory promises is just as enforceable as a promise in return for an executed act. Atiyah, however, points to the fact that, in the 20th century, there are numerous examples of promises which have not been acted upon which do not give rise to contractual liability. This is especially so in the consumer sector where there is some evidence that purely executory promises will not always be enforceable: Consumer Credit Act 1974

doi:10.4324/9781843141518-51

Chapter

No Image Available

Chapter

What may serve to distinguish a gratuitous promise from a promise enforceable in law is the fact of an express or implied request. Thus, if there is a promise to pay money or to do some act or to forbear from doing a particular thing in circumstances in which there has been no request to make the payment or do the act etc, the promise is likely to be regarded as gratuitous and unenforceable, unless there is evidence of reasonable reliance on the promise (see below, p 136). A further important factor in determining whether a promise is enforceable is whether or not it has been acted upon. A key feature of much of Atiyah’s work is that the paradigm 19th century model of promissory liability is premised on the belief that a set of purely executory promises is just as enforceable as a promise in return for an executed act. Atiyah, however, points to the fact that, in the 20th century, there are numerous examples of promises which have not been acted upon which do not give rise to contractual liability. This is especially so in the consumer sector where there is some evidence that purely executory promises will not always be enforceable: Consumer Credit Act 1974

ABSTRACT

A further important factor in determining whether a promise is enforceable is whether or not it has been acted upon. A key feature of much of Atiyah’s work is that the paradigm 19th century model of promissory liability is premised on the belief that a set of purely executory promises is just as enforceable as a promise in return for an executed act. Atiyah, however, points to the fact that, in the 20th century, there are numerous examples of promises which have not been acted upon which do not give rise to contractual liability. This is especially so in the consumer sector where there is some evidence that purely executory promises will not always be enforceable:

Consumer Credit Act 1974 67 Cancellable agreements

A regulated agreement may be cancelled by the debtor or hirer in accordance with this Part if the antecedent negotiations included oral representations made when in the presence of the debtor or hirer by an individual acting as, or on behalf of, the negotiator, unless:

(a) the agreement is secured on land, or is a restricted use credit agreement to finance the purchase of land or is an agreement for a bridging loan in connection with the purchase of land, or

(b) the unexecuted agreement is signed by the debtor or hirer at premises at which any of the following is carrying on any business (whether on a permanent or temporary basis) –

(i) the creditor or owner;

(ii) any party to a linked transaction (other than the debtor or hirer or relative of his);

(iii) the negotiator in any antecedent negotiations.