Performance of Existing Duties Flashcards
STILK v MYRICK (1809) 2 CAMP 317
Performance of an existing contractual duty is not sufficient consideration for a promise to pay more.
Simply performing an existing contractual duty owed to the other party will not be sufficient consideration in exchange for a promise by the other party to pay more money.
Stilk v Myrick was an action for seaman’s wages on a return voyage from London to the Baltic. At Cronstadt two of the 11-man crew deserted, and the captain promised to split the wages of the deserters equally among the rest of the crew if they would work the ship home. They did so, but the captain did not pay them the extra money. The court held that the captain’s promise was unenforceable for want of consideration
GLASBROOK BROS LTD v GLAMORGAN CC [1925] AC 270
Exceeding an existing legal duty can amount to sufficient consideration.
In Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270, the owners of a mine, during a coal strike, sought assistance from the police in protecting those workers who had continuing responsibility to maintain the mine. The police reasonably suggested a mobile force, but the owners insisted that officers must be billeted at the premises, and agreed to pay the council for this service. Later, however, the owners denied any legal obligation to pay, on the basis that the police had merely been carrying out their legal obligation to keep the peace.
The House of Lords held that the police had provided protection over and above what they reasonably considered necessary for the safety of the workmen at the mine. In other words, they had exceeded their public duty and this was consideration for the agreed sum.
COLLINS v GODEFROY (1831) 1 B & AD
950
The performance of an existing duty imposed by law is not sufficient consideration in exchange for a promise of payment.
A question arose as to whether someone who had been ordered to attend court as a witness (who therefore had a duty, imposed by law, to attend) could enforce a promise of payment made to her by the person on whose behalf she was to testify. In Collins v Godefroy (1831) 1 B & Ad 950, such a promise was held to be unenforceable on the basis that there was no consideration for it.
Ward v Byham [1956] 1 WLR 496, CA.
In this case, the father of an illegitimate child promised to pay the mother an allowance if the child was ‘well looked after and happy’. The mother had a duty imposed by law to support the child. The Court of Appeal had to decide if the mother had given any consideration in exchange for the father’s promise. Denning LJ decided that she had.
Denning - I have always thought that a promise to perform an existing duty should be regarded as good consideration because it is a benefit to the person to whom it is given.
Note, however, that in Ward v Byham the other two judges found consideration on the basis that the mother had in fact exceeded her legal duty by promising to keep the child well looked after and happy. To a large extent, the rule against using a legal duty as consideration seems couched in public policy. In a case such as Collins v Godefroy, it would clearly be against the public interest to allow the promise of payment to be enforced. However, in Ward v Byham there is nothing contrary to public policy in allowing the mother to enforce the allowance which she had been promised by the father.
Williams v Williams [1957] 1 All ER 305,
Williams v Williams [1957] 1 All ER 305, Denning LJ said: a promise to perform an existing duty is, I think, sufficient consideration to support a promise, so long as there is nothing in the transaction which is contrary to public policy.
SCOTSON V PEGG (1861) 6 H & N 3295
Existing contractual duties owed to a third party -
If a person is already bound to perform a particular act under a contract, it seems that the performance of this act can amount to sufficient consideration for a separate contract with someone else.
Performance of an existing contractual duty owed to a third party will amount to consideration (Scotson v Pegg).
A promise to deliver a cargo of coal to the defendant was held to be consideration even though the claimant was already contractually bound to a third party to make such a delivery.
HARTLEY v PONSONBY (1857) 7 E1 B1 872
Exceeding a contractual obligation will be sufficient consideration
If you exceed a contractual obligation which you owed me, that clearly will be consideration as you will have conferred an extra benefit on me (and probably suffered additional detriment).
It involved members of a ship’s crew who deserted. Whereas in Stilk v Myrick it was only two out of the 11-man crew, in Hartley v Ponsonby it was almost half of the crew, and of those left only a few were able seamen. This made continuation of the voyage exceptionally hazardous for the remaining crew. On that basis they were not bound by the terms of the original contract to proceed with the voyage. By agreeing to continue the voyage, the remaining crew had given good consideration for the promise of extra payment.
Performance of an existing contractual duty owed to the other contracting party will not normally amount to consideration (Stilk v Myrick). If the claimant exceeds his existing contractual duty, this will usually be consideration (Hartley v Ponsonby).
WILLIAMS v ROFFEY BROS & NICHOLLS (CONTRACTORS) LTS [1991] 1 QB 1
Exception to the rule that performance of an existing duty will not be sufficient consideration
It may be argued that the decision in Williams v Roffey Bros suggests that there must be some extra benefit to the promisor and, to that extent, avoidance of having to pay compensation under the main contract was significant.
This case provided that performance of an existing duty owed to the other party will be consideration, provided the other party receives a practical or commercial benefit. So practical benefit per se may be consideration, but if the promise to pay more was only made under duress, the variation may be avoided.
Williams v Roffey Bros concerned a contract to refurbish a block of flats. The defendants were the main contractors, and they subcontracted the carpentry work to the claimants for £20,000. Part way through the work the claimants realised they had underestimated the cost and told the defendants of their financial difficulty. The defendants (mindful of the fact that if the work was not completed on time the defendants would be liable to pay compensation under the main contract) promised to pay the claimants extra money (ie £575 per flat) to complete on time. On this basis the claimants continued to work on the flats but in the event were not paid the extra money promised by the defendants and sued. The main issue before the Court of Appeal was what, if any, consideration the claimants had given in return for the promise of additional money. Whilst it was conceded by the defendants that they had secured practical benefits (ie avoiding liability under the compensation clause in the main contract and the cost and expense of finding other carpenters to finish the job), the defendants argued that there was no legal benefit.
The defendant had secured practical benefits (or otherwise obviated disbenefits). For example, they did not have to find new sub-contractors to replace the claimant and had avoided liability under the compensation clause. There was no detriment to the claimant but, if you think back to the definition of consideration (at para 1), it is not essential for there to be both benefit and detriment 2. According to Glidewell LJ the decision leaves intact the principle in Stilk v Myrick It simply refines and limits the application of the principle, so where a promisor secures no practical or other benefit from performance of the contract by the other party, it will not be good consideration for the promise of extra payment.
The court in Williams v Roffey Bros clearly regarded it as significant that there was no evidence of duress or fraud. Indeed it was the defendants who had suggested the increased payment. If there had been economic duress then the variation could have been set aside/avoided
