Consideration and Estoppel
Consideration:
1. General:
The orthodox view is that the doctrine of consideration is based on the idea of
‘reciprocity’ –
That a promisee should not be able to enforce a promise unless he has given
or promised to give something in exchange.
2. Performance of a contractual duty owed to the promisor:
e.g., will continue and complete the work previously agreed to do.
Original view – dating back to case of Stilk v Myrick:
The performance of an existing contractual duty owed to a promisor was no
consideration for a fresh promise.
BUT – the court in later case of Williams v Roffey took a very different, pragmatic
approach.
Placed an emphasis on the practical benefit gained by the defendant.
In that case, there was no one practical benefit which the defendants were
held to have obtained as a result of the claimant’s promise.
Their ‘benefits’ included the claimant not breaching their contract,
being spared the “trouble and expense” of finding another contractor,
avoiding a penalty for delay in completion, and an improved payment
and work schedule.
As Purchas LJ said himself, although in “normal circumstances the
suggestion that a contracting party can rely on his own breach to establish
consideration is distinctly unattractive”, it was appropriate and applicable on
the facts of the case in conjunction with the other benefits identified.
Does not formally challenge the rule that a promise to perform an existing
duty owed to the promisor does not constitute consideration.
BUT – the change in emphasis has undermined the traditional rule
and the courts today do not require much persuasion in order to find
the existence of consideration.
3. Performance of a duty imposed by law:
Orthodox position = performance of an existing duty imposed by law does not
constitute consideration.
Ward v Byham – father promised to pay mother of his illegitimate child £1 a week
provided that the child was well looked after and happy.
Denning LJ –
Launched a direct assault on the general rule, holding that the mother
provided ample consideration by performing her legal duty to support
the child.
Morris LJ –
The fact that the mother promised to do more than her legal duty by
promising to keep the child ‘happy’ constituted ample consideration.
Glasbrook Ltd v Glamorgan CC –
A promise to do more than one is legally obliged to do is good consideration.
In this case, providing police officers on site of strike was going beyond their
public duty.
4. Part Payment of a Debt:
General rule = a promise to accept part payment of a debt in discharge of the entire
debt is not supported by consideration.
Already contractually obliged to repay the entire debt.
Unless agree to repay at an earlier date?
Foakes v Beer – upheld Pinnel’s case
Consideration:
1. General:
The orthodox view is that the doctrine of consideration is based on the idea of
‘reciprocity’ –
That a promisee should not be able to enforce a promise unless he has given
or promised to give something in exchange.
2. Performance of a contractual duty owed to the promisor:
e.g., will continue and complete the work previously agreed to do.
Original view – dating back to case of Stilk v Myrick:
The performance of an existing contractual duty owed to a promisor was no
consideration for a fresh promise.
BUT – the court in later case of Williams v Roffey took a very different, pragmatic
approach.
Placed an emphasis on the practical benefit gained by the defendant.
In that case, there was no one practical benefit which the defendants were
held to have obtained as a result of the claimant’s promise.
Their ‘benefits’ included the claimant not breaching their contract,
being spared the “trouble and expense” of finding another contractor,
avoiding a penalty for delay in completion, and an improved payment
and work schedule.
As Purchas LJ said himself, although in “normal circumstances the
suggestion that a contracting party can rely on his own breach to establish
consideration is distinctly unattractive”, it was appropriate and applicable on
the facts of the case in conjunction with the other benefits identified.
Does not formally challenge the rule that a promise to perform an existing
duty owed to the promisor does not constitute consideration.
BUT – the change in emphasis has undermined the traditional rule
and the courts today do not require much persuasion in order to find
the existence of consideration.
3. Performance of a duty imposed by law:
Orthodox position = performance of an existing duty imposed by law does not
constitute consideration.
Ward v Byham – father promised to pay mother of his illegitimate child £1 a week
provided that the child was well looked after and happy.
Denning LJ –
Launched a direct assault on the general rule, holding that the mother
provided ample consideration by performing her legal duty to support
the child.
Morris LJ –
The fact that the mother promised to do more than her legal duty by
promising to keep the child ‘happy’ constituted ample consideration.
Glasbrook Ltd v Glamorgan CC –
A promise to do more than one is legally obliged to do is good consideration.
In this case, providing police officers on site of strike was going beyond their
public duty.
4. Part Payment of a Debt:
General rule = a promise to accept part payment of a debt in discharge of the entire
debt is not supported by consideration.
Already contractually obliged to repay the entire debt.
Unless agree to repay at an earlier date?
Foakes v Beer – upheld Pinnel’s case
