(2) must be done for another person

(3) must not be intended to be done gratuitously

(4) must be such that the other person enjoys the benefit of the act or the delivery.

In their Lordships' judgment these matters must be answered at the time that the act is done or the thing delivered and this, their Lordships think, is of fundamental importance. In this case the relevant time was therefore the building of the roadway in April to December, 1961.

As to the first point it is of course clear and not in dispute that as between Mr. Siow and Susur Rotan the act was lawful, it was clearly in the contemplation of both parties that Susur Rotan should do this work.

It is the second point which in their Lordships' judgment is decisive of this case. As a matter of phraseology the section seems clear upon it. To bring the section into play the person when doing the act or delivering the thing must do the act "for another person" or deliver some thing "to him". So that his then present intention must be to do the act or to deliver the thing for or to another."

(per Lord Upjohn at p.120)(Emphasis added)

[8] In fact the principle with respect to the application of s 71 Contracts Act in