Past Consideration

Question 1

Eastwood v. Kenyon (1840), 11 Ad. & E. 438, 113
(Past Consideration Is No Consideration)

Issues:
- Did the woman provide consideration?
- Is a promise sufficient to form a contract?

Answer 1

Rules:
- Consideration made in the past is not consideration at all because it lacks mutuality (one isn’t conditional on the other).
- Consideration does not have to flow to each party, it only needs to flow from each party.
The promise does not actually have to personally benefit each party, the promises just need to come from each party.

Analysis:
- There needs to be a conditional relationship for mutual consideration between Eastwood and Kenyon.
- Kenyon promised to pay, but Eastwood promised nothing in return and had already raised Sarah as a child, completely unaffecting Kenyon, so the consideration had passed and there was no conditional relationship.
- Kenyon’s promise to pay is therefore no more than a gift.
- Eastwood finished her end of performance before Kenyon even made a promise to help Sarah pay off the debts for Eastwood, so her end of consideration had long since passed and therefore had no condition for Kenyon (Kenyon is getting no promise back in return from Eastwood).
- Promises should be enforced, however, they cannot since voluntary undertakings or promises if held legally obligatory would make it so anyone could sue everyone.

Conclusion:
- No consideration from the woman, no contract.

Question 2

Lampleigh v. Brathwait (1615), Hobart 105, 80 E.R. 255 (K.B.)
(Exception to Past Consideration)

Issues:
- Can a promise to pay after a request has been fulfilled be binding?

Answer 2

Rules:
- An act done before the giving of a promise to make a payment can constitute consideration for that promise if…
1) The past act was done at the request of the other party (expressed or implied).
2) The parties understood at the time that it would be compensated for in the future.
-Different from Eastwood v Kenyon, since here the performance fulfilled by one party was done out of a request of the other party, and the parties at this particular day and age could objectively imply that Lampleigh would be expected to be compensated for his services.

Analysis:
- This was not a situation where Lampleigh offered to pay $100 for Brathwait obtaining the pardon. Brathwait had already tried to obtain the pardon.
- There was no mutual exchange of promises between Lampleigh and Brathwait, however, this is not a problem if the past consideration (from Lampleigh) was performed at the request of the other party in reasonable circumstances the person would believe he should be compensated for.
- Consideration existed because it can be implied by an objectively reasonable person that Lampleigh would have been expected to pay for performing his duties upon Brathwait’s request for services. He was never volunteering.
- Volunteering does not create consideration or a reason to sue.
- Consideration had passed since Lampleigh had already completed his end of the promise and was not under a conditional relationship with Brathwait to pay him back.