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O'Sullivan & Hilliard's The Law of Contract (2018 8 ed). p. 98.

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The red underlines fit para. 31 of the judgment:

  1. In the present case the price for which R's promise was bought was the forbearance of the MOD to exercise its power to return him to unit. It could not be a promise that he would not be returned to unit, because, as their Lordships have already observed, the Crown was entitled to move him to another regiment and could not fetter its discretion by a contract having effect in private law [emboldening mine]. Whether there were any circumstances in which it could have created a legitimate expectation giving rise to rights against the Crown in public law is a matter which their Lordships need not discuss. But the actual forbearance was in their Lordships' opinion sufficient consideration to support the contract. In Alliance Bank Ltd v Broom (1864) 2 Dr & Sm 289, 292 the bank demanded security for its loan in circumstances in which, as Sir Richard Kindersley V-C said, it would otherwise have enforced payment. It made no promise not to demand payment but:

"the [bank] did in effect give, and the defendant received, the benefit of some degree of forbearance; not, indeed, for any definite time, but, at all events, some extent of forbearance."

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    Note that the underlined sentence says "illegitimate", not "illegal" - they may have two very different meanings in this context (eg what is 'illegitimate' may not be 'illegal').
    – user4210
    Apr 24, 2019 at 4:45
  • @Moo Thanks! I rewrote the title to fit the judgment.
    – user89
    Apr 24, 2019 at 5:22

1 Answer 1

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The Ministry of Defence offered, as consideration, to agree not to transfer the individual, R.

It was held by the Privy Council, however, that the Ministry of Defence is not allowed to fetter (i.e limit) its own powers in such a way. It, as a statutory body, was given these powers and apparently these powers are absolute.

Therefore the consideration was invalid. And the contract would be void for lack of consideration.

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  • Thanks. 1. "It was held by the Privy Council, however, that the Ministry of Defence is not allowed to fetter (i.e limit) its own powers in such a way." 2. "apparently these powers are absolute." Why exactly to both? I read the judgment but can't find an answer.
    – user89
    Dec 5, 2019 at 8:18
  • Basically a the ministry of defence was created out of a piece of legislation, this legislation states that the ministry has certain powers. The court probably said that since these powers are granted by legislation they are absolute in nature, and can only be limited if the legislation says so (which it doesn't) Dec 5, 2019 at 14:57

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