According to Prof.

Ben kiromba Twinomugisha's book, titled principles of Law of contract in

Uganda1, the author argues that whereas offer and acceptance establish the existence of an
agreement, they alone are not sufficient in the formation of a valid contract. In addition to the
two, there should be consideration which he defines as a mutual exchange of promises, and thus
incorporating the aspect of bargain into a contract. Section 2 of the contract act of 2019 2defines
consideration as a right, interest, profit or benefit accruing to one party or forbearance, detriment,
loss or responsibility given, suffered or undertaken by the other party. In the 1875 case of Currie
V Misa3, the term value is added to consideration hence stating that a valuable consideration, in
the sense of the law, may consist either in some right, interest, profit or benefit accruing to one
party, or some forbearance, detriment, loss or responsibility, given, suffered, or undertaken by the
other. The element of economic value means that there should be quid pro quo i.e., something for
something, and this partly forms the common law doctrine of consideration. Consideration is
categorized into three i.e.; Executed consideration, which occurs when one of the parties does
what he or she is required to do under the contract and therefore meets their end of the bargain.
The second is executory consideration, where both parties promise(s) to perform an act or acts in
the future, and the third is past consideration, whose general rule states that past consideration is
no consideration. Lawyers from Allen & Overy in a document titled basic principles of English
contract law, stated on page 5 4that consideration is something of value, and must move from the
promisee.

Having taken note of the challenges arising from the common law doctrine of consideration,
which was rigid and therefore produced injustices, as it was seen in the case of Balfour v Balfour
[1919] 2 KB 5715, where Mr. Balfour a civil engineer working in Sri Lanka lived there with his
wife. Mrs. Balfour while on their leave in England developed a health crisis i.e., rheumatoid
arthritis and the doctor advised her to stay in England due to the weather conditions. Mr. Balfour
promised to pay his wife 30 pounds monthly until she returns back to Ceylon (Sri Lanka). In
1918, she sued for none payment and got judgment. Mr. Balfour appealed and the court of appeal
unanimously held that there was no enforceable agreement between the two. Irrespective of the

1
Prof. Ben kiromba Twinomugisha's book, titled principles of Law of contract in Uganda
2
Section 2 of the 2019 contracts Act
3
Currie V Misa Case
4
Basic principles of English contract law
5
Balfour v Balfour [1919] 2 KB 571
fact that the promise made by Mr. Balfour was out of nature love and affection for his wife, court
held that there was no intention to create a legally binding contract. Prof. Ben Kiromba criticized
the reason behind the decision of Lord Atkin, referring to it as patriarchal, outdated, and out of
touch with reality and cannot be justified, and therefore a bad precedent that should not be
followed by our courts. Section 20 of the Uganda contracts act of 2019 created substantial
developments by generating exceptions to the general rule of consideration which is stated in sub
section 1 that an agreement made without consideration is void. The first exception to this is
found in subsection 1 (a), which states that a contract is valid if it is expressed in writing and
registered under the registration of documents Act and is made on account of natural love and
affection between parties standing in a near relation to each other. In the case of Bhiwa v
Shivaram (1899) 1 Bom LR 4956, the plaintiff had a quarrel with the defendant over property, the
two were biological brothers and upon Bhiwa losing the case, Shivaram promised through a
written and duly registered agreement that he would give half his property to the brother.
Shivaram later backed out and Bhiwa sued. The Bombay High court held that section 25(1) of
the Indian contract act applies 7since the brother made the promise out of love and affection for
someone who was a near relative, therefore his promise provided sufficient consideration hence
was liable to comply.

The second exception in subsection 1(b) states that a contract is valid if it is a promise to
compensate, wholly or in part, a person who has already voluntarily done something for the
promisor or something which the promisor was legally compelled to do. This exception comes to
mitigate the harshness as seen in the Re McArdle [1951] Ch 669 8case, where William McArdle
left a house to his five children in equal shares, the wife to one of the sons Mrs. Marjorie
McArdle, carried out improvements to the house amounting to 488 pounds. The 5 children of
McArdle signed a document in which they promised to repay Mrs. Marjorie the 488 pounds.
After the testators' widow died, the 4 sons refused to pay and Mrs. Marjorie sued. The defendants
argued that the plaintiff had performed the task voluntarily and therefore did not provide
consideration, thus asserting the principle of "equity will not assist a volunteer". The court held
that the transaction was incomplete and imperfect, because the plaintiff performed the work

6
Bhiwa V Shivaram (1899) 1 Bom LR 495
7
Section 25(1) of the Indian contract Act
8
Re McArdle [1951] Ch 669
voluntarily before asking for payment, therefore her consideration was in the past hence not good
consideration, and the agreement was unenforceable. Making reference to the definition of
consideration as per section 2 of the 2019 contract act, Mrs. Marjorie McArdle was a party in a
contract who suffered detriment and financial loss and hence her actions provided sufficient
consideration, therefore the contract should have been held as valid and enforceable by law.

The general rule of part payment of a debt at common law as stated on page 55 of the book
principles of law of contract in Uganda, is that all debts must be paid in full and any creditor is
not bound to accept part payment of a debt in satisfaction of the whole amount owed. This is
further explained in Pinnel's case [1602] 5 C0. Rep. 117a 9which is also known as penny v Cole,
where Pinnel sued Cole in an action of debt upon a bond, for the sum of 8 pounds 10 shillings
due 11 November 1600. The defendant, Cole argued that he had at the plaintiff's request paid a
sum of 5 pounds 2 shillings and 6 pence on 1 October 1600, and had accepted the same in full
satisfaction of the original debt. The judge Sir Edward Coke held in the plaintiff's favor stating
that "payment of a lesser sum on the day in satisfaction of a greater cannot be any satisfaction for
the whole, because it appears to the judges that by no possibility a lesser sum can be a
satisfaction to the plaintiff for a greater sum." Another case to this effect is D & C Builders Ltd V
Rees [1965] EWCA Civ 310, where the plaintiff, a two-man building firm run by Mr. Donaldson
and Mr. Casey did work for the defendant, Mr. Rees and owed 732 pounds, of which the
defendant paid 250 pounds, and 482 pounds was owing. Mrs. Rees offered 300 pounds in full
payment after learning that the plaintiff was running bankrupt. The plaintiff reluctantly accepted
this cheque and when it was honored, the plaintiff sued for the balance of the original debt. Lord
Denning held that no sensible distinction can be taken between payment of a lesser sum by cash
and payment of it by cheque. It was also noted that the debtors' wife held the creditors to ransom
well knowing their financial stress. Because the rule in Pinnel's case is capable of producing
harsh and unfair results as argued by Prof. Ben Kiromba because it raises the question of why
should a creditor who has benefited from prompt part payment of his debt insist on payment of
the whole debt? This argument among other authorities created the need to develop the doctrine
of equitable or promissory estoppel as well as the third exception in subsection 1(c) of the

9
Pinnel's case [1602] 5 C0. Rep. 117a
10
D & C Builders Ltd V Rees [1965] EWCA Civ 3
Uganda contracts act 2019, which states that a contract is valid if it is a promise made in writing
and signed by the person responsible for it or by the agent of that person, to pay wholly or in part
a debt for which a creditor may have enforced payment but is restricted by the limitations act. In
the case of Couldery v Bartrum (1800) 19 Ch. D. 394, Chancery Division11, Judge Jessel MR
held that if the creditors together decided that they would take less than the full amount, the fact
of that agreement between them would be counted as consideration. That meant then that no one
creditor would try and go for the whole amount, because that would give that creditor an unfair
advantage. Another case is that of Central London Property Ltd v High Trees Ltd, where the
defendant leased a block of flats from the plaintiff at 2500 pounds per annum. The outbreak of
World War 2 in 1939 led to a downturn in rental market. The defendant struggled to find tenants
for the property and requested the plaintiff to lower the rent, therefore agreeing on 1250 pounds
per annum. By 1945, the building was returning to full occupancy and the plaintiff wrote to the
defendant requesting to return to the full rent of 2500 pounds, and claiming arrears of 7916
pounds for the period since 1940. Lord Denning J of the kings' Bench Division held that the full
payment was payable from the time the flats became fully reoccupied in mid-1945. He added in
an obiter statement that if the plaintiff had tried to claim for full rent (arrears), from 1940
onwards, they would not succeed.

Section 20 subsection 2 states that nothing in this section shall affect the validity of any gift
given by a donor to a donee. Prof. Ben Kiromba in his monograph of 2020 mentions that this
subsection recognizes the validity of any gift given by a donor to donee. This is justified in the
registered trustees of Kampala Archdiocese v Nbitete Nnume mixed co-operatives farm limited
12
case, where the plaintiff claimed that in 1980, Mr. kapere Joseph out of natural love donated in
writing the said house on plot 41 Namirembe road to Nakulabye catholic church, to be used for
whatever purpose by the church. The agreement was signed between Mr. Kapere Joseph and
Rev.Fr. F. Payeur the then parish priest on behalf of the church as a donee. In 1999, the defendant
claimed ownership of the land arguing that Mr. Kapere was not the registered proprietor of the
suit land and that the purported donation was cancelled by Mr. kapere in his will on 1986. Judge
Bashaija k. Andrew stated that a gift of personal property made during a donor's lifetime and
delivered to the donee with the intention of irrevocably surrendering control over the property is

Couldery v Bartrum (1800) 19 Ch. D. 394

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The registered trustees of Kampala Archdiocese v Nbitete Nnume mixed co-operatives farm ltd
12
valid, therefore dismissed the suit with costs to the defendant. This judgement was made out of
reference to the case of Joy Mukube v Willy Wambuwu13, where Judge Wangutuse J outlined the
essential conditions of a gift that include the absence of consideration, the donor and donee, then
transfer and acceptance. The case of kithende kalibogha v Mrs. Eleonora Wismer, 14where the
appellant challenged the decision of the high court stating that the learned trial judge erred both
in law and fact by finding that the donation of plot 3, Rubaga road was incomplete. Hon. Mr.
Justice S.B.K Kavuma held that the land comprised in plot 3 Rubaga road is of a leasehold
tenure, and as such the respondent, though a foreigner can have the same registered in her names,
and may at wish transfer the same to an NGO that may be subsequently created.

Section 20, subsection 3 of the Uganda contract act states that an agreement to which the consent
of a promisor is freely given is not void merely because the consideration is inadequate. Section
14 of the Indian contract Act defines free consent as when two or more persons agree upon the
same thing and in the same sense. Consent is not free when inter alia factors like coercion, undue
influence, misinterpretation is involved. Section 2 of the Uganda contract act defines coercion as
the commission or threatening to commit any act forbidden under any law or the unlawful
detaining or threatening to detain any property, to the prejudice of any person with the intention
of causing any person to enter into an agreement. A contract is valid for as long as there is a free
and voluntary agreement of the parties, comprised of offer and acceptance. There must be
consensus ad idem, loosely translated as a meeting of the minds. According to section 16 of the
1872 Indian contract act, undue influence is when one party to the contract is in position of trust
and wrongfully controls the other party, and such a party uses his dominant position to gain an
unfair advantage over the other. In the case of D & C builders ltd v Rees, Lord Denning MR
stated that he found the defendants' wife had effectively held the builders to ransom, therefore
any variation of the original agreement was voidable at the instance of the debtors for duress.
People of unsound mind are also deemed as unfree contracting agents, in the case of Center for
health Human rights and development, Prof. Ben Twinomugisha and others v Attorney General15,
where the plaintiff challenges the Government of Uganda for failure to provide minimum mental
health services. CJ Bart Katurebe held the view that court was required to determine whether

13
Joy Mukube v Willy Wambuwu
14
kithende kalibogha v Mrs. Eleonora Wismer
15
CEHURD, Prof. Ben Twinomugisha and others v Attorney General
government had provided or taken all practical measures to ensure the basic medical services to
the population. The constitutional court held that the words 'idiot' and 'imbecile’ used in section
130 of the penal code act to describe women and girls with disabilities are derogatory,
dehumanizing, degrading and unconstitutional as they violate article 24 of the constitution.

Section 20, subsection 4 of the Uganda contract act states that notwithstanding sub section (3),
the inadequacy of consideration may be taken into account by the court in determining whether
the consent of a promisor was freely given. In the case of White V Bluett (1853) LJ Ex 3616,
Bluett Sr. lent his son, the respondent in this case, a sum of money and died before the son had
repaid. Mr. White, the executor of the will sued Bluetts' for the outstanding payment. The son
argued in his defense that Bluett Sr. had stated that repayment was not necessary, to render the
promissory note ineffective if the son stopped complaining about the manner in which Bluett Sr.
spread his estate among the other members of the family. The issue before court was to define
whether the son's promise to stop complaining about his father's plans would satisfy the
requirement of consideration in constructing a contract. Judge Pallock held that the son had no
right to complain as the father was free to distribute his property as wished, therefore ceasing
from complaining was inadequate or no consideration at all and an intangible promise.

White V Bluett (1853) LJ Ex 36

16