A Comparison of Consideration Cases

From orthodox view, the performance of an existing duty should not constitute consideration.

A performance of an existing duty is a responsibility of one side, mean the side has to do what he or she need to do.

By the way a consideration is a process of an exchange between A and B. It must be agreed by both of them, this is called a consideration. If one of a side does not agree the offer, then it will not constitute a consideration.

So, I agree the performance of an existing duty should not constitute consideration.

2.0 Definition

2.1 Definition of consideration

Sir Frederick Pollock defined consideration as “a consideration is an act of forbearance of a party or the promise so, the value for the promise of the other side is bought and the promise thereof given for the value is enforceable. A promise can’t supported by consideration and it is not a binding contract generally. The most common consideration is made by a process of paying or promising to pay money in return for the supply of goods or services. Besides that, there are three principles to control the application of consideration to a contract. Consideration must sufficient but need not to be more than enough; an act, forbearance or promise will only be equal to consideration in case of the Law recognizes that it has some economic value. Nevertheless the court does not ask whether adequate value has been provided or whether the agreement is one-sided or harsh in common. Malaysia Law states past consideration is a good consideration; where the party puts forward the act to a contract as consideration which was performed before the other party make any promise of payment, this act can be looked as past consideration and is cause to happen no consideration at all. Consideration must be given by the promise but no need move to the promisor, means it must move from the promisee; a party wishes to enforce a contract to show that himself had furnished consideration for the promise of the other party even though it had been to the benefit of the other party unnecessarily. The essential for the formation of a contract definitely is consideration. The doctrine of equitable estoppels or promissory is to allow a possible exception. For example, at English Law, in case of C owes D $30 and he or she hopes to discharge his or her debt by paying D $27; C must obtain the agreement of D and C must provides D some consideration for abandoning his right to the full payment of $30, unless there is a seal for the release.

So, the payment of a lesser sum in satisfaction for a bigger sum on the day the debt is due to is not consider as a satisfaction for all of the sum. In Malaysia, has no application of the rule in Pinnel’s case since at 1950, section 64 of the contract allows people be above to accept a lesser sum in satisfaction of the debt.

2.2 Definition of Performance of Existing Duty

In general, a performance of an existing duty cannot be offered as a consideration. A performance of an existing duty is one’s responsibility. The performance of existing duty is separated into two different categories which are domestic or social and public or commercial. Domestic or social is about something happened in a family or between closing relationships likes, a couple of husband and wife were divorced, they had a promise between each other but one of them is not following the promise, So this may make a case to argue. Public or commercial is about, if someone with public responsibilities, do a particular task, and then agreed to do a job, is not fully consider the contract; if someone exceeds their public responsibilities, then it may be worth considering but if someone promises to do something, they have done is bound under the contract, it is not worth considering. Sometimes, perform their duties if the contracts given to the practical interests of the other party consider this to constitute an effective.

3.0 Compare Cases (Domestic)

3.1 Compare Balfour v Balfour [1919] 2 KB 571, CA and Merritt v Merritt [1970] 2 All ER 760, CA

Balfour v Balfour [1919] 2 KB 571, CA

D is a civil servant in Ceylon he was about to return to work, leaving his wife of phosphorus in the UK. P agreed to pay 30 pounds per month until he returned to her agreement to support his appeal that no other repair own exchanges. They later divorced and P sought to enforce D’s promise. The Court of Appeal said that although the P’s commitment to consider, there is no contract. There are many agreements, said Atkin LJ, including most of the agreement between husband and wife, both of which had never intended, they may be prosecuted. If these agreements are completely outside the field of contract.

Merritt v Merritt [1970] 2 All ER 760, CA

A husband leaves his wife lived with another woman. H agreed to pay £ 40 a month, they do a written agreement, in return for their W jointly owned mortgage the house to consider, H would transfer to her sole ownership. Court of Appeal upheld the ruling Stamp J, which is a legally enforceable contract. In this case, Lord Denning MR said, the court looked at the situation they are placed, and asked whether reasonable person would think you want to tie an agreement.

4.0 Compare Cases (Commercial)

4.1 Compare Stilk v Myrick [1809] 170 ER 1168, KB and Hartley v Ponsoby [1857] 119 ER 1471, QB

Stilk v Myrick [1809] 170 ER 1168, KB

Following the abandonment of seamen in the search for alternatives is difficult, the ship’s crew, the remaining members of the promised additional pay, if they will ship back home. When the ship arrived in London seamen sought to enforce this commitment, but the court of their findings. Through their work than they do not live in their existing duties, so I had new commitments given no new consideration. They have the right to pay the original agreed upon in their beginning of the voyage, but occasionally deserted the sea between the normal hazards; they cannot require any additional money.

Hartley v Ponsoby[1857] 119 ER 1471, QB

36 boat’s crew left England, but the results of this desertion reduced to only 19, just five able seamen, who promised an additional payment, if they can help the boat return to England. The court said that this is enforceable undertakings: the crew was reduced, so it is a dangerous voyage, the captain did not claim. The original contract has ended, the crew and the freedom to make a new contract may agree on any terms.

4.2 Compare Collins v Godefroy [1831] 109 ER 1040, KB and Ward v Byham [1956] 2 All ER 318, CA

Collins v Godefroy [1831] 109 ER 1040, KB

An expert witness who is P presents court for the six days under D’s subpoena, but in fact called to give evidence. D subsequently promised to pay him six guineas which is 6.3 pounds for his time, but did not do so, and P sued. Chief Justice, Lord Tenterden said in a court summons as liability P appears in the , he is doing it not, to support D commitment.