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When you’re running a business in Australia, strong and clear contracts are at the heart of every professional relationship – whether you’re working with clients, suppliers, employees, or business partners. But have you ever wondered what actually makes a contract legally binding? One of the most crucial elements is “consideration” – a concept that sounds technical but is fundamental to everyday business dealings.
Understanding what legal consideration is, why it matters, and how to spot problems with it can help you protect your interests and avoid the kinds of disputes that are all too common among Australian businesses. Whether you’re drafting your first agreement or reviewing existing contracts, knowing the ins and outs of consideration gives you a solid foundation for every deal you do.
In this guide, we’ll break down what consideration means in Australian contract law, how it works, and what you need to look out for. If you’re ready to feel more confident in your contracts and safeguard your business, keep reading – we’re here to make legal concepts straightforward and actionable.
What Is Legal Consideration in Contract Law?
Let’s start with a clear definition: in contract law, consideration refers to the value that each party provides to the other when entering into a contract. In other words, it’s the “something for something” that must change hands for the agreement to be enforceable.
Consideration might sound like a technical legal term, but you see it all the time in business life. Examples include paying money for goods, promising to deliver a service in exchange for a fee, or agreeing to do (or not do) something valuable for another person or business. Without consideration, there’s no true contract – only a one-sided promise that the law generally can’t enforce.
Define Consideration in Contract Law
At its core, consideration is one of the essential building blocks of a valid contract. According to Australian contract law, a contract must contain several key elements:
- A clear offer and acceptance
- Intention by both parties to form a legal relationship
- Consideration (something of value exchanged between the parties)
- Certainty and clarity of terms
- Capacity of the parties to contract
This means both you and the other party must agree to give or do something of value – money, goods, services, or even a promise. If there’s no consideration, the law generally won’t treat the contract as binding.
To learn more about how contracts work overall, see our Complete Guide to Contract Law for Australian Businesses.
What Counts as Consideration?
So, what exactly can be consideration in a contract? The law is quite flexible – almost anything of real value, economic or otherwise, can count. The classic phrase is that consideration must be something that is “valuable in the eyes of the law.” That can include:
- Money payment (for products, services, use of intellectual property, etc.)
- A promise to act (such as providing a service, delivering goods, granting rights or access)
- A promise to refrain from doing something (for example, agreeing not to compete or not to pursue a legal claim)
- An action already performed (sometimes valid, but usually consideration must be promised for the current contract, not just something already done; see “past consideration” below)
The key is that each party must be giving up or agreeing to do something that they otherwise would not have to do. This reciprocal exchange is what forms the “bargain” at the heart of contract law.
Examples of Consideration in Contract Law
- Sale of Goods: You sell a batch of T-shirts. The buyer pays $500 for your stock. The shirts are your consideration; the $500 is theirs.
- Service Agreement: A web designer agrees to create a website for $2,000. The web design is one party’s consideration; the money paid is the client’s.
- Settlement Agreement: You agree not to sue someone in exchange for a payment (or other action). Your forbearance (giving up your legal right) counts as consideration.
- Non-Compete Clause: You pay an employee extra to agree not to work for a competitor for a period after leaving your business. The promise to refrain from competing is valid consideration.
If you’re new to drafting contracts, our Guide to Contract Law offers a deeper dive into what makes contracts legally binding.
What Makes Consideration “Good” in the Eyes of the Law?
Not all exchanges between parties qualify as legal consideration. For consideration to be “good” – that is, sufficient for the law to recognise the contract – it must fulfil certain requirements:
- It must be real and tangible. The promise can’t be too vague or uncertain (“I’ll pay you someday” is not enough).
- It must move from the promisee. In legal speak, the person receiving a promise must themselves provide the consideration (not a third party).
- It must not be “past consideration”. Doing something before the contract is formed (without a promise for future compensation at the time) usually isn’t valid. For example, fixing someone’s fence as a favour and then asking for payment later isn’t supported by consideration.
- It need not be “adequate”. The law doesn’t care if the bargain is a good deal, only that real value is being exchanged. You can sell a car for $1 – it’s still a contract. But if it’s for “nothing,” it isn’t.
This means a contract can be lopsided in terms of value, but it still needs to have some real exchange. Promises to do impossible things, or for “love and affection” alone, generally aren’t valid consideration.
For more info about contract fairness and what’s required under Australian law, see our article on Contract Fairness and Unconscionable Conduct.
When Is Consideration “Illusory” or Insufficient?
Sometimes people use the phrase “illusory consideration.” This means a supposed promise is so uncertain, vague, or open-ended that it doesn’t really bind anyone to do anything. In these cases, the law says there’s effectively no consideration, and the contract can’t be enforced.
Here are some scenarios where consideration may be ruled “illusory”:
- One party says, “I’ll pay you if I feel like it” – that is too uncertain.
- A supplier promises to provide goods “if available,” giving them total freedom not to perform.
- A contract gives one party complete discretion about whether to perform or not, without any real obligation.
It’s important to avoid these kinds of “non-promises” in your contracts. If your agreements aren’t clear about what each side is providing, you may run into serious enforceability issues later on.
If you’re unsure about contract wording, our Contract Redrafting Guide may be helpful for tightening up agreements and avoiding ambiguity.
Why Is Consideration So Important for Business Contracts?
For Australian business owners, consideration isn’t just a legal technicality – it’s what protects your rights and gives you remedies when things go wrong. Here’s why you should always ensure contracts have proper consideration:
- Enforceability: Without consideration, your agreement might not be legally enforceable. You could end up unable to hold the other party accountable – to get paid, receive goods, or access services.
- Clarity: Being clear about what is being given or promised on both sides avoids misunderstandings, disputes, and lost opportunities.
- Risk Management: Well-drafted contracts (with solid consideration) help prevent disagreements and provide a basis for resolving them if they arise.
Australian courts are strict about enforcing promises only where each party is actually giving up something, not just making empty gestures. That’s why understanding legal consideration is key to every business deal you make.
If you need help making your agreements rock-solid, see our Australian Contract Law guide or chat to our legal team for support.
How Does “In Consideration Of” Work in Legal Agreements?
In many Australian business contracts, you’ll see the phrase “in consideration of” in the recitals (the introduction at the top) or in the key clauses. This simply confirms what is being exchanged between the parties. For example:
- “In consideration of the payment of $10,000, the Supplier agrees to deliver 500 units of product…”
- “In consideration of your undertaking, we hereby grant you the license…”
This kind of wording makes it very clear what each party is providing and forms the foundation of the enforceable contract. If there’s ever a dispute or confusion, these clauses help clarify the bargain struck.
If you want practical tips on contract language, see our resource on Clarifying Legal Contract Terms.
When Is Consideration NOT Required?
In general, Australian law requires consideration for a contract to be binding. However, there are a few exceptions where contracts can be enforceable without consideration. The most notable one is a legal document called a deed.
A deed is a special type of contract that is binding simply because it is signed and delivered in a particular way. No consideration is needed – instead, the “seriousness” of a deed is reflected in the formalities required to make it valid. This is why some important business agreements (like deeds of confidentiality, deeds of settlement, or guarantees) are executed as deeds.
You can read more about this distinction in our article, Difference Between a Deed and an Agreement.
Legal Documentation: Why Get Professional Support?
Ensuring your business contracts have proper consideration – and are otherwise well-drafted – isn’t just a box-ticking exercise. It’s protection for your business’s reputation, finances, and operations. While free templates may seem appealing, one-size-fits-all contracts often miss important details, especially around what each party truly owes the other.
Key legal documents where consideration must be properly identified include:
- Service Agreements: Outline what services you agree to provide and what you will receive in return.
- Sale of Goods Agreements: Clarify what goods are being delivered, for what price, on what schedule.
- Employment Contracts: Set out the pay, benefits, and duties in exchange for an employee’s work.
- Partnership Agreements: Spell out what each partner contributes (skills, capital, time) and how benefits or profits are shared.
- Shareholder Agreements: Define what each shareholder gives up or gains within the company.
Every agreement should clearly spell out who is giving what – so both parties (and the law) can see the value exchanged. For a walkthrough of drafting clear contracts, have a look at our Customer Contracts Guide.
What Issues Should Businesses Watch Out for With Consideration?
Even if you understand the basics, some common pitfalls can undermine consideration in your contracts. Here’s what to look for:
- “Past” Consideration: Don’t base agreements only on services or payments already made. The value exchanged should relate to the new agreement, not past acts.
- Unclear/Uncertain Promises: Avoid phrases like “if possible,” “at our discretion,” or “as we see fit,” unless you want the contract to be unenforceable.
- Lack of Mutuality: Ensure both sides are actually promising and delivering something, not just one side.
- Gifts and Gratuitous Promises: If you’re not receiving (and providing) real value, your agreement is a gift – not a contract. The law won’t force performance of most gifts.
Whenever you’re unsure, it’s wise to get professional help to review or draft the agreement. This is especially vital if large amounts of money or future business opportunities are at stake. For a quick overview of documents you may need, see our guide on Legal Documents for Your Business.
What Happens If Consideration Is Missing?
If a contract lacks valid legal consideration, a court may rule it as unenforceable. This means if the other party fails to perform, you might have no legal remedy. In some circumstances, a court may give an “equitable” remedy (where it would be unfair not to enforce a promise), but this is rare, complex, and unpredictable.
It’s always safest to ensure your contracts include clear, explicit, and adequate consideration for every party involved. For complex deals – or if standard contracts won’t suit your needs – we’re here to help you get things done right from the start.
Key Takeaways
- Consideration is the exchange of value at the heart of every business contract – it’s what each party gives or promises to do.
- Valid consideration can be payment, services, goods, a promise to act, or a promise to refrain from action; both sides must provide something.
- Contracts without clear, mutual consideration are likely unenforceable under Australian law.
- “Illusory” or vague promises don’t count as real consideration – contracts need clear obligations from both parties.
- Deeds are a special exception, as some contracts can be binding without consideration if properly executed as a deed.
- Careful contract drafting not only helps prevent disputes – it can save your business time, money, and headaches.
- When unsure, get legal advice to review your contracts and ensure you’re protected.
If you’d like a consultation on contract law, business agreements, or any other legal aspect of running your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
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