Consideration Flashcards
CJ Hamson
The common law notion of offer and acceptance does not apply to gratuitous promises - need consideration
Currie v Misa, Thomas v Thomas
Definition - it is the ‘price of the promise’ - one sustains a benefit as the other sustains a detriment - the law pays no regard to the adequacy of the consideration but it does the sufficiency - adequacy being, at law, equal to the benefit, and sufficiency being managed by what is consistent with legal rules
Chappell v Nestle
Consideration needs to have been shown as objectively moving from the promisee - the only exclusion is where it cannot be ascertained before the court e.g. ‘that you treat me how you used to’
- The benefit here was selling more chocolate bars and the indirect benefit of advertisement
Cook v Wright
Being spared the expense and trouble of legal claims is consideration, even if those claims should never have been brought against you personally - note policy issue, of course, the case may well have been thrown out the case, but that has yet to be decided so it is mere speculation
Wade v Simeon
No consideration, same as Cook v Wright but here the claimants KNEW that they didn’t have a cause of action and the giving up of a claim in bad faith did not amount to consideration - McKendrick’s criticism of the emphasis on the C’s state of mind - this may exclude consideration where bad faith is at play
Combe v Combe
Consideration needs to be requested, so here, where the wife had said she had avoided going to the divorce court and that was the consideration, he had not asked her to do so
Dickinson v Abel
Consideration distinguished from gifts - the absence of a deal - the gift can be conditional on something happening but to decide whether that is consideration is to look at whether something moves from the promissee
Roscorla v Thomas
Consideration must not be past - must constitute one single transaction
Lampleigh v Braithwaite
Implied Assumpsit - exception to Roscorla - something done before a promise can make the promise bind despite the timing, therefore, it is the second promise which is the real one
Re Casey’s Patents, Pao On
Implied assumpsit - Even though the promise came after his resignation, the first promise could only have been given proper effect for his past services – must look at the document and see if it could have been, or was, given proper effect at the time
Collins v Godefroy
If the duty that is being contracted is an existing one at general law, not contract, then the usual view is that it will not amount to consideration - this is not necessarily for reasons of consideration, however, it seems to be more of a policy issue here re witnesses
Ward v Byham
A legal duty can be consideration - just because there is an existing legal duty does immediately negate good consideration - here, the father too benefited from the mother looking after their child - here the promise should be honoured and not avoided on a technicality and there are no policy issues
Scotson v Pegg, approved in The Eurymedon
Performance of contractual duties to a third party - in the latter Wilberforce L construed the contract as a whole and it was of a commercial character - he also distinguished between the technical doctrine and its practical application, there are many times we cannot readily find consideration -
White v Bluett
Consideration could not be found where one had no right to do what was being promised in the first place (this was complaining to his father) - however, this is not illegal and the court could have found consideration -
Lipkin Gorman
HL - solicitor here was buying the opportunity to gamble, nothing else - also seems to be strategic on behalf of the house as finding consideration would have negated the firm’s right to restitution to restore the stolen money – this shows the flexibility of consideration