Is Tolerance really Tolerance?

[Madhusudan Mishra]

For "agreeing to the 'obligation' to tolerate an act", one must have an option/right "to not tolerate". When "tolerance" is default and you have no other option to choose from it cannot be said to be an 'obligation to tolerate'. "Obligation" requires acceptance. Acceptance needs offer and lawful authority. When you have no authority, acceptance is for "what"?

Tolerance requires relinquishment. It cannot be assumed (especially not as opportunity cost per se). If opportunity cost is tolerance then every other contract is "to tolerate an act". Damages are not for tolerance. They are due to breach. Breach is of a condition and a condition cannot be a consideration. But damages can have 'colour' of consideration on perusal. Every damage is not compensation and compensation is not consideration.

Anyone who enters into a legal arrangement runs the risk of a breach of contract. Acceptance makes the 'breach' default leaving no way to forfend. Have you ever heard of a "right" to "rectify" a breach? If not, then with which authority one would accept "not to rectify" but "to tolerate" (Reactive Tolerance)? "to tolerate" is the ONLY option UNTIL "not to tolerate" is an available option (Proactive Tolerance).

Penalty cannot be a consideration. Consideration flows from recipient to supplier and not vice versa. Once breached, roles are reversed. Breaching party is a 'penalty' payer (being recipient) who can't purchase the non-performance from the non-breaching party.

What if there is a payment default by the "Hawker"? The "Shopkeeper" will exercise its legal right (previously waived) to remove the Hawker from the premises by no more "tolerating" (repudiating the proactive tolerance) its presence.

One ought not to say that contracts are not entered for non-performance. It's the untrained mind. Reasonable is what depends on the context (see bolam's reasonability test). "Pure damages" declared when it's a supplier's breach. Such damages require congruence and perusal.