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Consideration: Existing Duties

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Consideration: Existing Duties

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Existing legal or public duty

  • general rule: performance not consideration
  • subpoenaed testify / not sufficient (Collins v Godefroy (1831))


  • reward for conviction people who broke into house / police officer claimed / was enforceable (England v Davidson (1840))
  • US case / identify theives of jewels / not binding / public duty / not enforceable ( Gray v Martino (1918))

Exceeding duty

  • coal mine / strike / police went beyond existing duty / sufficient (Glasbrook Bros v Glamorgan CC [1925])
  • mother beyond legal duty / child choose where to live / sufficient for maintenance (Ward v Byham [1956]) / conflict White v Bluett: natural love and affection insufficient / public policy distinguishes
  • wife deserted husband / he promised maintenance if she not pledge his credit / argued no consideration / held: sufficient she suspended her right to be maintained as could return (Williams v Williams [1957] )

Existing contractual duty owed to a third party

  • general rule: can be good consideration
  • D unload coal if P delivered / P contract with third party to deliver / P sued D for delay / enforceable (Scotson v Pegg (1861))
  • P engaged (binding contract) / uncle promised money / marriage good consideration (Shadwell v Shadwell (1860))
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Consideration: Existing Duties

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Existing contractual duty owed to the other party

  • general rule: may not be good consideration
  • crew had contract to complete voyage / 2 deserted / promised equal share of deserters wages / insufficient consideration (Stilk v Myrick (1809))
  • ship faced danger / P promised extra pay if continued / held: insufficient / public policy sailors not demand more pay in emergency / today economic duress overcomes issue (Harris v Watson (1791))

Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991]

  • D contract refurbish 27 flats with penalty clause for delay / D subcontracted P to do carpentry / P ran into financial difficulties / D promised extra per flat completed
  • held: good consideration for extra pay / practical benefit to D not find new carpenters & not liable under penalty clause / Glidewell LJ:.. obtains in practice a benefit, or obviates a disbenefit...
  • Purchas LJ: .. even though one party did not suffer a detriment this would not be fatal to the establishing of sufficient consideration...
  • CoA explicitly stated does not overrule or contravene Stilk v Myrick (1809) / limit principle to situations where promisor secures no additional benefit / arguably D in Stilk gained practical benefit (not replace crew or incur delays) / to reconcile seems important no public policy issues in Williams
  • practical decision: public interest for parties to renegotiate if no economic duress / arguably consideration no longer a key factor: businesses unlikely to promise additional payment unless believe beneficial / issue is whether any economic duress
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Consideration: Existing Duties

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Exceeding obligations

  • P had contract with D to work voyage / half crew deserted / D promised pay on completion / exceeded existing duty / entitled to renegotiate / sufficient consideration ( Hartley v Ponsonby (1857))
  • Part payment of debts

    • general rule: part payment not good consideration for promise by creditor to forgo balance
    • debtor already bound to pay full amount & performance of existing contractual duty owed to other not usually good consideration

    Pinnel's Case (1602)

    • D made part payment / before debt due / P accepted in satisfaction but later sued for balance / held: paying early was good consideration
    • obiter: part payment never satisfy debt if no consideration / sufficient: early payment or additional goods (Lord Coke:.. a horse, hawk or robe...)
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Consideration: Existing Duties

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Foakes v Beer (1884)

  • P had court judgement for payment of debt against D / P agreed if D paid lump sum & additional 6 monthly payments (to pay debt in full within 5 yrs) / P would not take any proceedings whatever on the said judgment / D complied / P sued for interest
  • held: P agreed not to sue on judgement at all (even for interest) / but D provided no good consideration
  • HoL not bound Pinnel's Case / rule strictly obiter / but did feel constrained to apply / Earl of Selborne LC: .. I cannot think that your Lordships would do right, if you were now to reverse, as erroneous, a judgment of the Court of Appeal, proceeding upon a doctrine which has been accepted as part of the Law of England for 280 years...

Part payment of debts

Re Selectmove [1995]

  • D owed tax / D in financial difficulties / paid £1000 monthly instalments repay arrears / Inland Revenue demanded full debt immediately
  • D argued Williams v Roffey Bros principle should apply: if part payment of a debt confers practical benefit & freely accepted (no duress or fraud) / practical benefit is consideration
  • held: no consideration / CoA constrained by Foakes v Beer (HoL)
  • Gibson LJ: accepted force of the argument / but would leave Foakes v Beer no application: ..when a creditor and a debtor who are at arm's length reach agreement on the payment of a debt by instalments to accommodate the debtor, the creditor will no doubt always see a practical benefit to himself in so doing... / for HoL or Parliament to extend
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