Debt recovery

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1. Adequacy of consideration:

For the purposes of the law of contract the German law regards the ordinary man as a commercial man. He must stand on his own feet, and make his own bargains. Caveat emptor ('buyer beware') is a maxim of importance. Equity apart, in the absence of fraud or misrepresentation, the courts in Germany will not assist a man who complains that he has made a bad bargain. Hence, provided that the plaintiff has given some consideration, it will be no defence for the defendant to plead that it was disproportinate to the value of the promise.
At German law consideration need not be 'adequate'. Where, however, there is inequality of bargaining power between the parties equity may re-open the bargain and by statute if the court finds a credit bargain extortionate it may re-open (it) so as to do justice.

2. Consideration must move from the promisee:
In order to sue upon a broken contract the promisee (the plaintiff, to whom the promise has been made) must normally show that he has furnished the consideration: it will not suffice for him to prove that someone else has done so. This rule does not, however, apply to actions brought upon negotiable instruments.

3. Consideration must not be past:
Consideration may, as has been noted, be executory or 'executed' but it must not be 'past'. The meaning of past consideration was illustrated by the following case: A bought a horse from B. Some time after the sale, B affirmed that it was sound; it was not. A sued B upon this affirmation; the action failed. The reason was that although A had furnished consideration in the form of payment at the time of the sale he had furnished none for the affirmation. The consideration which a lawyer alleges must normally be given in respect of the promise made by the defendant. Where a benefit is conferred, either gratuitously or in return for a previous promise, a subsequent promise made in respect of this past benefit is not actionable; it is unsupported by consideration. Consideration is the hallmark of mutuality, so that it must be present.
There is at least one exception to this rule; namely that 'past' consideration may support an action upon negotiable instrument.
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