consideration Flashcards

1
Q

Consideration

A

Consideration is a mutuality of offering an act or a promise to do something or not do something, may consist either in some right interest, profit, or benefit accruing to the one party or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other party.

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2
Q

Exceptions to consideration:

A

1) Contracts under seal – cross-pages seal?
2) Contracts without consideration are enforceable under promissory estoppel

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3
Q

Consideration must have: rights/interest/ profit/ to other party, is not an exhausted definition

A

1) value: not in terms of commercial or economic but value in the eyes of the law, which comes from the mutuality of exchange (that is “consideration”, the exchange part, I am doing this for you in considering you do that for me) of obligation to do or not do something (Thomas v Thomas)
2) mutuality of exchange one promise must be conditional on the other (Dalhousie)
3) promise does not have to move to the parties it only has to flow from both parties (Thomas v Thomas)

What is the point of the doctrine of consideration?
* essence of the bargain theory of contract: idea something is only a bargain if there is an exchange
o if it doesn’t have mutuality of each doing something it is not a bargain and it is a gift
* gift does not have mutuality, it is unilateral
* consideration serves as an analytical device to distinguish gifts (in essence property law)from contracts

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4
Q

THOMAS V THOMAS 1842 QC – PEPPERCORN THEORY, THOMAS DIES LEAVES HOUSE TO WIDOW 1 POUND PER YEAR

Facts * Testator dies and leaves house to widow in exchange for 1 pound annually in rent
* Executor kicks her out of house and claims this was not consideration because 1 pound per year is not close to actual value, so widow is suing that she has a contractual right to stay in the home
Issues Is there valid consideration? (Is the contract enforceable, if no consideration, then not enforceable)

A

Rules * Establishes the peppercorn principle: that consideration must have value in the eyes of the law not economic value, you can give a mansion in exchange for a peppercorn
* Consideration must flow from each party (both parties must do sth / or promise to do sth, if not, then no mutuality)
Analysis * Consideration means something that has value (something valuable) in the eyes of the law (that means legal value) not market value and vested in mutuality of giving:
* In this case: giving the house in exchange for 1 pound per year is mutuality
* Court does not analyze through economic value for 2 reasons:
* (1) freedom of contract theory: can make whatever deal you want, and court will give effect to it, no matter a good / bad deal
* (2) practically speaking if it were otherwise would undermine commercial certainty (if could sue only because you made a bad deal)
* Consideration must flow from both parties because bargain theory of contract and mutuality are what distinguishes contracts from a gift
Conclusion Yes, there was valid consideration

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5
Q

GOVERNORS OF DALHOUSIE COLLEGE HALIFAX V THE ESTATE OF ARTHUR BOUTILLIER 1934 SCC – ONE PROMISE MUST BE CONDITIONAL ON THE OTHER, SUBSCRIPTION FUND DIED BEFORE PAYING

Facts * Man promises to donate $5000 to Dalhousie as part of a fundraising campaign called a subscription fund
* Brochure generally refers to things they would do if they got a certain amount of money
* He later tells Dalhousie he can’t afford to pay, dies, and Dalhousie sues his estate for the money
* His estate it was a promise of a gift aka a nudum pactum
Issues Did the parties provide consideration? (no consideration, not enforceable)

A

Rules Consideration is, in essence, a conditional relationship between the 2 parties where one party does something on the condition that the other party does something, in contrast to a gift. Need to be a promise that flows from each party rather than an exchange of gratuitous gifts.
Analysis * Arthur promised $5000 but Dalhousie did not promise anything in return they just generically expressed a wish list depending on how much money was raised
* Need mutuality but these 2 commitments were not related – Dalhousie’s promise was not conditional on the other
* If there is consideration, there would be an implied or express request but there was no request that Dalhousie do anything specific with the money
* This case was gifts because no conditional relationship
* Court flips it to analyze: if he gave $5000 dollars and they didn’t build a library could he sue them for breach of contract? No because they didn’t promise to do anything.
Conclusion No, the parties did not provide consideration so no binding contract.

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6
Q

EASTWOOD V KENON 1840 QC – PAST CONSIDERATION IS NO CONSIDERATION, CARING FOR MINOR, HUSBAND AGREES TO PAY HER BACK FOR THAT

Facts * Plaintiff is caring for a minor in her wardship, minor comes of age, and plaintiff marries her to a husband
* Husband promises to reimburse the Plaintiff for all the expenses that she incurred while raising the girl
* Husband does not pay, and plaintiff is suing for breach of contract, but husband argues there was no consideration flowing from the woman.
Issues Did the woman provide consideration?

A

Rules As a general matter, past consideration is no consideration because it lacks mutuality (one isn’t conditional on the other)
Analysis * There needs to be a mutuality of consideration: the husband promised to reimburse the woman, but the woman did not promise anything, she already raised the minor her consideration has passed temporally and isn’t dependent on his promise
* Analytically, this is an exchange of gifts
* The woman’s act was performed before the other party made consideration to reimburse her
* No conditional relationship
Conclusion No there was no consideration from the woman. Past consideration is no consideration because no mutuality (see exception in Lampleiiigh case). Consideration does not have to flow to either party but has to flow from either party.

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7
Q

LAMPLEIGH V BRATHWAIT 1615 KINGS BENCH – EXCEPTION TO PAST CONSIDERATION IS NO CONSIDERATION, PRINCIPLE REARTICULATED IN PAO ON, NOBLEMAN GOT PARDON

Facts * Defendant killed someone and needed plaintiff the nobleman to get him a pardon, so plaintiff rides around the countryside to secure a pardon from the king
* No mention at the for payment but after getting the pardon, the defendant is very grateful and promises to give the nobleman 100 pounds
* The nobleman asks for the payment and the defendant refuses so nobleman sues
Issues Did the defendant provide consideration?

A

Rules An exemption to the rule of past consideration is no consideration: an act done before giving a promise to make a payment can be consideration for that promise if:
1) The past act was done at the request of the other party (express or implied)
2) The parties understood at the time it was to be rewarded / compensated for with some future payment or benefit from the reasonable person would think so in such circumstances
Analysis * There was consideration in this case because it would have been understood even though not expressly stated that the act would be paid for
* Reconciled from the previous case because facts were different, here the act was done on request of the other party and the parties understood at the time it was to be compensated for
Conclusion Yes, there was past consideration in this case, and should be accepted as “consideration”.

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8
Q

FORBEARANCE OF SUIT

A

Forbearance of suit = promising not to sue
Promise to do / not do something (can be anything), forbearance is promising not to do something.
Does this count as consideration? It depends.
Forbearance situation:
1) Ask if the payment has already been made:
a. If it has been made in fact, then its binding because gift (property law) (Zellers)
2) If money hasn’t been paid and is just promised to pay, then follow Zellers rules:
a. If the underlying tort claim is valid then promise not to sue in exchange for promise is valid contract, binding
b. If the underlying tort claim is invalid then can forbearance to sue is valid if the three conditions in Zellers are met

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9
Q

DCB AND HAROLD J ARKIN V ZELLERS INC 1996 MBQB – FOREBEARANCE OF SUIT AS VALID CONSIDERATION RULES, KID STEALS FROM ZELLERS

Facts * Kid steals stuff from Zellers, Zellers sends a letter to parents demanding they pay $225 or else they will sue.
* The mom pays the money to Zellers but then finds out she didn’t have to because Zellers did not have the right to sue the parents, so she wants her money back from a bogus lawsuit.
* Zellers argues there was a contract since they agreed to not sue and she gave money
Issues Does forbearance of suit count as valuable consideration even if lawsuit is bogus?

Note: Zellers never has a right to sue in tort. Is that a mutual consideration in this case? Consideration is moving from each party, consideration of mom is money, the “alleged” consideration of Zellers is “forbearance”. Promising not to sue in tort constitutes a consideration?
1. Has the payment been paid, yes then it’s a gift, you cannot recover the money.
2. Promise to pay the money depends on 1 & 2, depending on the underlying claim (valid or not).

A

Rules Forbearance of suit will count as valuable consideration if:
1) If the underlying tort claim is valid (Zellers in fact has the right to sue), then the promise of forbearance of suit is valid and therefore binding contract.
2) If the underlying tort claim is invalid, then the promise of forbearance of suit is still valid if three things are satisfied: (1) the forebearer had to honestly and objectively believe in good faith that it was a valid claim (2) that belief must be reasonable in the circumstances even if its incorrect (subjective belief) (3) they must have had an honest intention to sue in tort (can’t be matter of extortion), then it the promise to pay is still binding.
3) If the promise not to sue in exchange for money that had already been paid (as opposed to a promise to pay) then consequently the underlying tort claim is valid.
* It is binding once the money is paid over and you don’t need to consider steps 1 and 2.
* Courts treat this as an executed gift (not a contract they keep it because gift is valid)
Conclusion She paid so the money was considered a gift.

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10
Q

PRE-EXISTING DUTIES

A

Problem with pre-existing duties: if each party promises to do something but one party already has a contractual obligation to perform that duty then not promising anything at all because already had to do it- consideration needs to move from both and be fresh so this is a gratuitous promise.
Sub-categories of pre-existing duties (first question, ask how many parties here):
3 parties involved: Pao on v Lay Yiu Long = I already have to do something for you, but now I re-promised to a different person that I will do that thing for you = binding
2 people involved situations:
(1) General promises: a promise to pay more for something that is already owed
a. Gilbert Steel
b. Stilk v Myrick
c. Exceptions: starting with Williams v Roffey, Nav Canada, and Rosas v Toca
(2) Accord in satisfaction promises to accept less, debt situations (rather than promise to give more)
Need to be careful what the pre-existing duty is: if they promise to do anything more than what they were obligated not a pre-existing duty situation peppercorn doctrine: anything that is given in exchange for something else even if its trivial should be binding.
Approaching a question: first: discuss starting point of Stylk as reflected in Gilbert – law looks at these exceptions narrowly.
Then say there is an exception in Nav Canada/Rosa – doesn’t mean there is consideration just means there is an exception
If modification was not procured under duress (informed by mutual benefit) will be binding

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11
Q

PAO ON V LAU YIU 1980 HKPC – 3 PARTY SITUATION FOR PRE-EXISTING DUTY

A

Issues Was there consideration from Shing Corp in contract #3?
Rules * In a 3-party situation, promising to do a pre-existing duty will be valid consideration if the promise goes to a different party than was originally owed the promise to, even if it’s the same duty.
Analysis * Agreement 3 between Shing Corp and the shareholders of Fu Corp is binding because it’s a 3-party situation.
* Shing Corp already promising Fu Corp that it will do share swap deal in agreement 1 but Shing Corp promised the same thing to the shareholders of Fu Corp in agreement 3
* Rule because reinforces obligation because the new thing they are giving is exposing themselves to double liability – if they don’t go through with the agreement, they can be sued by 2 different parties
Conclusion Yes, there was valid consideration from Shing Corp.

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12
Q

STYLK V MYRICK 1809 KINGS BENCH – PRE-EXISITING DUTIES NOT CONSIDERATION, DURESS, CREW MEMBERS HAD TO DO EXTRA WORK WANTED EXTRA MONEY

Facts * Had all-encompassing sailing contract – do everything until ship gets back basically
* Some crew members mutiny and captain offer remaining sailors a wage increase to do extra work
* Ship returns to land and the captain refuses to pay the extra money
* Captain: promising more money so consideration from him but only pre-existing duty from sailors
Issues Did the crew members provide consideration so is the captain obligated to increase in wage?

A

Rules Promise to pay more to another party to continue a pre-existing duty is not binding because it’s a gratuitous gift since the other party gave no fresh consideration
Analysis * Captain can take back his promise since it was a gratuitous gift.
* Another reason case influential: captain made practical choice under duress to offer more money rather than consideration, so was not binding because not freely given
Conclusion No, the crew did not provide consideration so no, captain not obligated to increase wage.

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13
Q

GILBERT STEEL V UNIVERSITY CONSTRUCTION LTD 1976 OCA – STYLK V MYRICK SOLIDIFIED IN CANADIAN LAW

Facts * Steel contract, construction company agrees to pay a certain amount to Gilbert, because of market changes, the construction company promised they would pay Gilbert more, then later refuse
* Gilbert sues for the extra money, but the construction company argues their promise was gratuitous and therefore non-binding
* Construction company promising to pay more but steel company promised nothing new already must supply steel
Issues Did Gilbert steel provide consideration with the new contract?

A

Rules Modern example of Stylk and Myrick being applied, promising a pre-existing duty does not count as consideration.
Analysis * Shows the traditional approach that promising a pre-existing duty doesn’t count as consideration.
* Another argument made in this case: way to get around pre-existing duty rule is you can cancel the pre-existing duty and if it doesn’t exist anymore, you are not promising what you already had to do – rejected on the facts but perfectly acceptable argument.
* In a commercial context very unlikely to rescind a contract orally and even more unlikely here since the first one was written.
Conclusion No, Gilbert steel did not provide consideration. (In amending a contract, both sides must provide fresh consideration)

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14
Q

WILLIAMS V. ROFFEY BROS 1990 ENG. CA – EXCEPTION TO STYLK V MYRICK, PROMISE TO DO PRE-EXISTING DUTY VALID, PROMISED TO PAY SUBCONTRACTOR MORE

Facts * Commercial contractor hires subcontractor to work on series of apartments
* Sub-contractor is not working quickly enough to meet deadlines, so main contractor approaches (promise) to pay more money so they can hire more people and get it done on time
* Main contractor doesn’t pay, sub-contractor sues, main contractor argues pre-existing duty
* Nothing moving from the sub-contractor – he is promising what he already had to do
Issues Is this promise to pay more enforceable without fresh consideration?

Note: If the second contract is revoking the contract at the same time of modification. We should take practical approach to analysis the practical benefits. In most circumstances we look at the economic benefits, but sometimes not, e.g: avoiding the reputation disadvantage.

A

Rules * 2-part exception, the starting point is Stylk: presumption rather than a strict rule that promising what you already had to do doesn’t count as consideration if there is good evidence on these 2 points:
* 1) there are mutual practical benefits flowing to each party from the modification (even though there is no consideration from the sub-contractor, the main contractor can avoid penalty to the owner otherwise that they can pay, that is the practical benefit flowing to the main contractor).
* 2) the promise to pay more was not procured under “economic duress”
Analysis * Court finds problem with the rigid rule and wants to be receptive to the commercial reality so found the modification binding as an exception procured.
* Practical benefit is any sort of commercial advantage in this context, in practice the person getting more money will always get a benefit just have to show the other party is too.
* In this case main contractor doesn’t have to pay penalty and will get project done on time = benefit
* No economic duress: on balance of probabilities, it was consensual, it was him who approached the subcontractor to pay more, who approaches whom maters for voluntariness
Conclusion Yes, promise to pay was enforceable without fresh consideration.

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15
Q

GREATER FREDERICTON AIRPORT AUTHORITY INC. V. NAV CANADA 2008 NEW BRUNSWICK – MODIFIED WILLIAMS V ROFFEY

Facts * Nav Canada and the Great Fredericton Airport Authority (“GFAA”) were parties to an Aviation Services Facilities Agreement (“ASF” Agreement).
* Systems upgrade required for the airport, and they are under comprehensive performance contract, so obligation is to meet Canadian aviation rules but say they won’t unless Fredericton airport pays more money.
* Airport doesn’t pay, Nav Canada tries to enforce it and sues, airport says they don’t have to under pre-existing duty rules
* Nav Canada is only promising what they already had to do under the comprehensive airport contract
* Under traditional starting point of stylk v myrick promise to pay more is not binding
Issues Should Canada follow the modification rule from Williams v Roffey with the 2-part exception? (Is the modification binding?)

A

Rules * Presumption is promising what you already must do doesn’t count because it’s a pre-existing duty the modification will be binding if the promise to pay more in exchange for pre-existing duty was not procured under duress. —(as long as there is no economic duress)
* Presence or absence of mutual practical benefit will influence the duress question.
* Economic duress = illegitimate pressure (threat of breach) + other party had no choice but to agree/comply, need to meet both criteriers
Analysis * Decided stylk is harsh and should be modified but doesn’t follow Roffey exactly, doesn’t require mutual practical benefit just no duress, but the mutual practical benefits is a good indicator there is no duress.
* Absence of duress means if you freely and consensually promise to pay more for something already owed
* considering duress in this case: illegit pressure, Nav Canada is threatening to breach a contract, airport had no alternative practical option than the agree/comply.
* since there is duress here the promise is not binding
* stylk is both over-inclusive and underinclusive – captures renegotiation by coercion and underinclusive in cases with voluntary agreements
* commercial reality and reality of life is that contracts are modified, and parties expect they will be adhered to
Conclusion Adopted modified Williams v Roffey. In Canada, you only have to see if there is duress, if no duress, then binding.

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16
Q

ROSAS V TOCA 2018 BCCA – MODIFIED WILLIAMS V ROFFEY, MODIFICATION OF CONTRACT VALID NO NEW CONSIDERATION, LOTTERY THING

Facts * Rosa wins lottery and loans $600,000 to a friend, 7 years pass by, she gets tired of not being paid
* Statute of limitations: can’t collect debt after 7 years but she argues clock should be extended because she gave the other party extensions to repay her, each time she gave an extension a new contract was created
Issues When Rosas created extension for her friend was this a valid contract? (Is there a consideration from Toca, no, she is doing what she already promised to do).

A

Rules * Court takes a flexible approach, if the modification was made freely, informatively, and there was no duress (external pressure) brought to bear against either of the parties to pay more money than they owe then the promise to continue a pre-existing duty waives the consideration requirement.
* In assessing whether there was duress, it’s a good sign if there is mutual benefit but mutual benefit is not required
Analysis * Starting point: promising to do a pre-existing duty is not consideration
* Rosa is giving consideration every time she gives an extension, but Toca is not providing consideration she is promising to continue to do a pre-existing contract
* Analytically, conceptually, logically it makes sense that promising to do a pre-existing duty does not count as consideration but in the real world of human interaction, practically speaking, if the 2 parties want to modify their pre-existing deal, the court should allow them to based on freedom of contract
* No duress, then binding - Endorsed Nav Canada and mentioned Roffey bros and state if modification was mutually beneficially to both parties’ good indication there was no duress – which it was here (in this term, we only focus on the duress, do not mention practical mutual benefits)
* If one party is not getting anything new and the other benefits, then this may suggest but not confirm there is duress
Conclusion Yes, was a valid contract when Rosa’s extended it.
Even though Toca is only promising what she already promised to do, but if there is no duress, then binding.

17
Q

PROMISES TO ACCEPT LESS AKA ACCORD IN SATISFACTION

A

Main issue: there is consideration flowing from the lender but there is nothing fresh from the borrower = pre-existing duty, payment of a lesser sum is on the path of a greater sum, therefore no consideration (paying less than you already have to do is not a fresh consideration), arguably a gratuitous gift.
At a high level of abstraction not analytically different from agreeing to pay more but for historical reasons have been treated differently – modification of Rosa v Toca does not apply
1) Starting point = Foakes v Beer – promises to accept less in satisfaction of more are not legally binding
2) Does the Law and Equity Act apply? Is there part performance and express acceptance?
a. If yes = binding unless there is duress (Process Automation)
b. If no = back to Foakes v Beer
3) Back to Foakes v Beer try and characterize it as binding through Foot v Rawlings – characterize any novelty as fresh consideration
4) Another way could be binding = subsequent deal is procured under seal and seals obviate the need for consideration
5) Promissory estoppel = another way around Foakes v Beer

18
Q

FOAKES V BEER 1884 HL – PROMISE TO ACCEPT LESS IN SATISFACTION OF MORE = NUDUM PACTUM
Facts * Foakes owes 2000 pounds to Beer immediately plus interest, but he needs more time, so Beer promises if he pays 500 pounds now and makes regular payments until the principle is paid, he won’t charge interest
* Beer is promising something fresh (accept less) but Foakes is offering nothing new (paying less is offering nothing new, he is still doing what he already has to do)
* Foakes pays it but Beer revokes deal and asks for the interest arguing the new promise was a gift = non-binding
Issues Was the promise to accept less legally binding?

A

Issues Was the promise to accept less legally binding?
Rules A promise to accept less in satisfaction of more is not legally binding, because the debtor gave no consideration, and this is a gratuitous gift
Analysis Foakes is just continuing a pre-existing duty so does not count as consideration so Beer promise is nudum pactum.
Conclusion No, the promise to accept less is not legally binding.

Note:
If you owe me 100, I asked 50, not binding. If you owe me, I instead ask you 50 plus a peppercorn, binding, as now there is new consideration, you do not owe me a peppercorn.

19
Q

RE SELECTMOVE LTD 1995 CA OF E&W – ROFFEY BROS/ROSA DOES NOT APPLY TO ACCORD IN SATISFACTION
Facts * Argument that because the problems of a promise to pay more and accord in satisfaction are analytically the same, since they are both cases of pre-existing duties and defective consideration, that the new exception to Rosas v Toca (consideration waived if the contract modification is free of duress) should be applied to accord in satisfaction – same problem should have same solution
* Case of debt situation owed to gov, structuring plan, says to pay less than what is owed and will forgive remainder then turns around and say they want the whole thing
Issues Should we apply the exception from Rosa v Toca to accord in satisfaction cases?

A

Rules You cannot apply Rosa v Toca exception to accord in satisfaction cases – 和解清偿
Analysis * Court of appeal agrees same problem should have same solution and that its unprincipled to have a schism that treats these 2 categories different, but they cannot override the house of lords they are bound by Foakes v Beer
* Decline to transfer the Roffey Bros exception to this context
Conclusion No cannot apply Roffey Bros/Rosa v Toca to accord in satisfaction cases.

20
Q

FOOT V RAWLINGS 1963 SCC – WAY AROUND FOAKES V BEER, TRIVIAL CHANGE = FRESH CONSDIERATION, CHEQUES INSTEAD OF CASH = CONSIDERATION
Facts * Money is owed plus interest; they make a deal to accept lesser about to satisfy whole amount if its paid right away – turn around and want whole amount and argue the promise to accept less in satisfaction of more is non-binding because there was no consideration by the other party who is continuing to perform a pre-existing duty
Issues Was the promise to accept less in satisfaction of more legally binding?

A

Rules A promise to accept less in satisfaction of more is legally binding if both parties offer something fresh, which can include something seemingly trivial according to the peppercorn principle like a different form of currency for repayment, then it’s not a pre-existing duty and is legally binding.
Analysis * The starting point is Foakes v Beers, but this case is different.
* Foot owed cash but instead Rawlings made a modification by asking for negotiable instruments (cheques) instead of cash – there is something fresh being offered by both parties = consideration
* Goes to show the lengths courts are willing to take to make a modification binding, this reason is very artificial – means pretty much anything qualifies under this
* Find a way around Foakes v Beer, they agree with it but only if a pre-existing duty is in fact being engaged
Conclusion Yes, promise to accept less in satisfaction of more was binding because not a pre-existing duty
e.g.: give something different is not the pre-existing duty in the original contract, so it’s binding. It’s a troublesome case as it brings uncertainty.
What if the promise to pay early? E.g. $100 due Wednesday, if you can pay me $50 Tuesday, we can call it even, that’s binding. As you do not owe me anything on Tuesday. Carefully look at: what is the duty (exactly)? If the new promise is different, there is no pre-existing duty issue.

21
Q

LAW AND EQUITY ACT RSBC 1996 C.253 S. 43 – OVERRIDES FOAKES V BEER

A

Section 43: part performance of an obligation either before or after a breach of it, when expressly accepted by the creditor in satisfaction or rendered under an agreement for that purpose, though without any new consideration, must be held to extinguish the obligation.
* Means for example: 1. a borrower owes creditor $100, creditor reduces amount owed to $50, borrower pays the $50, 2. creditor expressly accepts it to satisfy reimbursement – the paying the lesser amount will be legally binding, if it is accord (not under duress)
o If it is a promise to pay or not expressly accepted, then the legislation does not apply
* This legislation overrules Foakes v Beer

22
Q

PROCESS AUTOMATION INC V NORSTREAM INTERTEC INC & ARROYAVE 2010 ONSC – BC LEA DOES NOT APPLY TO AGREEMENTS MADE IN DURESS, ULTIMATUM EITHER ACCEPT HALF OR NOTHING
Facts Borrower going bankrupt, said to the creditor he can either accept half the amount owed in satisfaction for whole debt or nothing at all. - court considered this to be duress
Issues Does section 43 of the Law and Equity Act apply in situations of duress?

A

Rules If there was duress (pressure put on the creditor) to accept less in satisfaction of more then s. 43 of the LEA will not apply and the new agreement will not be legally binding
Analysis * court refers to decision of Lord Denning in DC Builders which is an example of duress and Nav Canada as an example of duress
* duress = 1. illegitimate pressure coupled with 2. no practical choice but to accept
* when talking about agreement its implicit that the agreement is consensual and voluntary if its procured under duress the legislation does not apply because duress is no agreement at all.
Conclusion No, s. 43 of the LEA does not apply in situations of duress.