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Natural love and affection Natural love and affection is not a sufficient consideration.

White v Bluett (1853) 23 LJ Ex 36 A son's promise not to bore his father about the distribution of the father's property was HELD not to be a good consideration for the father's promise not to sue his son on a debt owing to him by his son. Pollock CB held there was no consideration for any discharge of the obligation to repay. The son ha d no right to complain' anyway. Not complaining was therefore an entirely intangible benefit. The plea is clearly bad. By the argument a principle is pressed to an absurdity, as a bubble is blown until it bursts. Looking at the words merely, there is some foundation for the argument, and following the words only, the conclusion may be arrived at. It is said, the son had a right to an equal distribution of his father's property, and did complain to his father because he had not an equal share, and said to him, I will cease to complain if you will not sue upon this note. Whereupon the father said, If you will promise me not to complain, I will give up the note. If such a plea as this could be supported, the following would be a binding promise: A man might complain that another person used the public highway more than he ought to do, and that other might say, do not complain, and I will give you five pounds. It is ridiculous to suppose that such promises could be binding. So, if the holder of a bill of exchange were suing the acceptor, and the acceptor were to complain that the holder had treated him hardly, or that the bill ought never to have been circulated, and the holder were to say, now, if you will not make any more complaints, I will not sue you, such a promise would be like that now set up. In reality, there was no consideration whatever. The son had no right to complain, for the father might make what distribution of his property he liked; and the son's abstaining from doing what he had no right to do can be no consideration.

A different view was taken in the American case of Hamer v Sidway (1891) 27 NE 256. An uncle promised to pay his nephew $5000 if the nephew refrained from drinking liquour, using tobacco, swearing and playing cards or billiards for money' until he was 21. On the basis that the nephew had a legal right to engage in the aforementioned activities he provided a valuable consideration by refraining. It would not have been a valuable consideration if the nephew had had no intention whatsoever in engaging in any of the prescribed activities. Arrale v Costain Civil Engineering [1976] 1 Lloyd's Rep 98 A workman who did not know of his rights provided no consideration by accepting compensation under a Dubai law in satisfaction of his rights in Dubai and at common law. Forebearance to sue A promise not to enforce a valid claim is a good consideration. A promise not to enforce a claim which is known to be bad in law is not a good consideration. Wade v Simeon (1846) 2 CB 548 A claim bad in law but seen by the promisee to be good raises a very difficult point of illusory consideration. Cook v Wright (1861) 1B & S 559 Plaintiffs honestly believed that D was under a statutory obligation to reimburse them for expenditure which they had incurred. D, denying that he was under any such obligation, paid a reduced amount on the sum demanded to avoid litigation. D discovered that he was not under a statutory obligation to pay and reneged on his promise arguing that it was not supported by consideration. The court HELD that his promise was supported by consideration and he had to pay the amount agreed. Performance of a duty owed by law Performance of a duty already owed under law is not a valid consideration.

Collins v Godefroy (1831) 1 B & Ad 950 P was subpoenaed to give evidence and alleged that D promised to reimburse her expenses. It was HELD that she could not enforce this promise as she was required by law to attend and give evidence and had not therefore provided any consideration for the promise. Glasbrook Bros v Glamorgan CC [1925] AC 270 Police under a general duty to protect property went beyond their duty in giving specific protection to a coalmine during a strike and in so doing provided consideration for the remuneration promised. Ward v Byham : The attack by Lord Denning Ward v Byham [1956] 1 WLR 496 The father of an illegitimate child promised to pay 1 a week to the mother for the upkeep of the child provided the child was well looked after and happy. The mother, under a legal duty to look after the child, sued to enforce the agreement. Denning LJ (As he then was) held that the mother provided consideration by performing her legal duty. The CA did not agree and upheld the general principle that the performance of an existing legal duty does not constitute a good consideration. The CA found consideration in the case by asserting that the mother went beyond her legal duty to look after the child by keeping the child happy. LORD JUSTICE DENNING: This is a claim for the sum of 1 a week in respect of the maintenance of a bastard child. The father and mother lived together unmarried for four or five years, from 1949 until May, 1954, and a little girl was born of that union on 26th October, 1950. whilst the father and mother were living together, the father went out to work and maintained the household. But in May, 1954, the father turned the mother out. He put the child into the care of a neighbour and paid the neighbour 1 a week. The mother meanwhile found work as a housekeeper to a man who was ready to let the child come too. The mother wanted the child with her, and she wrote a letter to the father asking for Carol, the child, and 1 a week for her maintenance, which was the sum which the father had been paying the neighbour. We have not got a copy of the letter which the mother wrote, but we have the father's reply, which is the basis of this action. It is dated 27th July, 1954, and says: "Mildred, I am prepared to let you have Carol and pay you up to 1 per week allowance for her providing you can prove that she will be well looked after and happy and also that she is allowed to decide for herself whether or not she wishes to come and live with you. She is well and happy and looking much stronger than ever before. If you decide what to do let me know as soon as possible". On receiving that letter the mother went to see the father, and it was agreed that she could have the child. She took the child with her, and the child has lived with the mother ever since. In February, 1955, some seven months later, the mother married the man to whom she had been acting as housekeeper; and a few weeks later the father himself married. The father kept up the payments of 1 a week until the mother married, but after that he stopped. I look upon the father's letter as dealing with two things. One is the handing over of Carol to the mother. The father agrees to let the mother have the child provided that the child herself wishes to come and provided also that the mother satisfies the father that she will be well looked after and happy. The other thing is the future maintenance of the child. The father promises to pay the mother up to 1 per week so long as the mother looks after the child. The mother now brings this action, claiming that the father should pay her l per week, even though she herself has married. The only point taken before us in answer to the claim is that it is said that there was no consideration for the premise by the father to pay 1 a week: because the mother, when she looked after the child, was only doing that which she was legally bound to do, and that is no consideration in law. In support of this proposition, reliance was placed on a statement thrown out by Baron Parke in the course of argument in Crowhurst v. Laverack (reported in 8 Exchequer, page 208) at page 213. It is quite clear that by statute the mother of an illegitimate child is bound to maintain it: whereas the father is under no such obligation. (see Section 42 of the National Assistance Act, 1948.) The mother can, of course, if she is a single woman apply to the magistrates for an affiliation order against the father: and it might be thought that in this case consideration could be found by holding that, the mother must be taken to have agreed not to bring affiliation proceedings against the

father. But the mother in her evidence said that she never at any time had any intention of bringing affiliation proceedings. It is now too late; for her to bring them, because she has married and is no longer a single woman. I approach the case therefore on the footing that the mother, in looking after the child, is only doing what she is legally bound to do. Even so, I think that there was sufficient consideration to support the promise. I have always thought that a promise to perform an existing duty, or the performance of it, should be regarded as good consideration, because it is a benefit to the person to whom it is given. Take this very case. It is as much a benefit for the father to have the child looked after by the mother as by a neighbour. If he gets the benefit for which he stipulated,, he ought to honour his promise; and he ought not to avoid it by saying that the mother was herself under a duty to maintain the child. I regard the father's promise in this case as what Is sometimes called a unilateral contract, a promise in return for an act, a promise by the father to pay &1 a week in of looking after the child, there was a binding contract. . So long as she looked after the child, she would be entitled to 1 a week. The case seems to me to be within the decision of Hicks & Gregory (reported in 8 Common Bench Reports at page 379) on which the judge relied. I would dismiss the appeal.

The case illustrates the rather elaborate reasoning of the judges to 'construct consideration' yet maintain the status quo. Dening LJ returned to the theme that the promise to perform an existing duty can constitute a good consideration in Williams v Williams [1957] 1 WLR 148 See: Denning LJ in Ward v Byham "I have always thought that a promise to perform an existing duty, or the performance of it, should be regarded as good consideration, because it is a benefit to the person to whom it is given." Contrast this with the earlier cases on natural love and affection, White v Bluett et al.

Performance of a duty owed under an existing contract The performance of an act already required under a prior contract cannot be a good consideration for a later promise. Stilk v Myrick (1809) 2 Camp 317 Sailors jumped ship. The Captain promised to divide their wages among the remaining crew if they agreed to work the ship home short handed. The Captain reneged on his promise. The sailors sued. It was HELD that they had not provided any consideration and could not enforce the contract. Lord Ellenborough: I think Harris v. Watson was rightly decided; but I doubt whether the ground of public policy, upon which Lord Kenyon is stated to have proceeded, be the true principle on which the decision is to be supported. Here, I say, the agreement is void for want of consideration. There was no consideration for the ulterior pay promised to the mariners who remained with the ship. Before they sailed from London they had undertaken to do all that they could under all the emergencies of the voyage. They had sold all their services till the voyage should be completed. If they had been at liberty to quit the vessel at Cronstadt, the case would have been quite different; or if the captain had capriciously discharged the two men who were wanting, the others might not have been compellable to take the whole duty upon themselves, and their agreeing to do so might have been a sufficient consideration for the promise of an advance of wages. But the desertion of a part of the crew is to be considered an emergency of the voyage as much as their death; and those who remain are bound by the terms of their original contract to exert themselves to the utmost to bring the ship in safety to her destined port. Therefore, without looking to the policy of this agreement, I think it is void for want of consideration, and that the plaintiff can only recover at the rate of 5 a month. Hartley v Ponsonby (1857) 7 E & B 872 A ship became so short handed from crew desertion that it was dangerous to sail. The crew were offered additional wages to sail the ship home. It was HLED that the sailors provided fresh consideration. The original contract was discharged and a new contract was entered into under these arrangements. William v Roffey Bros & Nicholls [1989] NLJ 1713 The CA HELD in the case of bonus payments that these will be enforced if the party agreeing to pay the bonus obtains some new practical benefit or avoided a disadvantage thereby. Russell LJ : the courts nowadays should be more ready to find [considerations] existence so as to reflect the intention of the parties to the contract where the bargaining powers are not unequal. He noted that Roffey Bros employee, Mr Cottrell

had felt the original price to be less than reasonable, and there was a further need to replace the haphazard method of payment by a more formalised scheme of money per flat. "True it was that the plaintiff did not undertake to do any work additional to that which he had originally undertaken to do but the terms upon which he was to carry out the work were varied and, in my judgment, that variation was supported by consideration which a pragmatic approach to the true relationship between the parties readily demonstrates. Wikipedia note: Glidewell LJ held Williams had provided good consideration even though he was merely performing a preexisting duty. Williams got 3,500 (not full expectation damages). He said that the idea of promissory estoppel was not properly argued and not yet been fully developed'. [ 1 ] The concept of economic duress provided an answer to Stilk's old problem. The test for understanding whether a contract could legitimately varied was set out as follows.

if A has a contract with B for work before it is done, A has reason to believe B may not be able to complete A promises B more to finish on time A obtains in practice a benefit, or obviates a disbenefit' from giving the promise there is no economic duress or fraud...

...then the practical benefit constitutes good consideration. On Stilk v Myrick , Glidewell LJ said, "It is not in my view surprising that a principle enunciated in relation to the rigours of seafaring life during the Napoleonic wars should be subjected during the succeeding 180 years to a process of refinement and limitation in its application to the present day." See also: North Ocean Shipping v Hyundai Construction (The Atlantic Baron ) [1978] 3 All ER 1170 Pao On v Lau Yiu Long [1980] AC 614; [1979] 3 All ER 65 Payment of a smaller sum in satisfaction of a larger sum is no satisfaction of that larger sum The debtor is already contractually bound to repay the larger sum and provides no consideration by agreeing to pay a smaller sum without more. Pinnel's Case (1602) 5 Co Rep 117a Earlier repayment of the smaller sum or payment on the due date of the smaller sum at a place appointed by the creditor and different from the place originally required under the obligation would constitute a valuable consideration. The gift of a horse, hawk or robe etc in satisfaction is good....... but not 19/6 for a 1. The rule was upheld by the House of Lords in Foakes v Beer (1884) 9 App Cas 605. B obtained judgment against F who asked for time to pay. B agreed to take no proceedings on the judgment in consideration of an immediate payment with the balance payable by instalments. F paid in full. B sued for interest. The House of Lords HELD that she was entitled to succeed on the claim. F provided no consideration for her promise. Wikipedia note: Pinnel's Case and the line of authority that flowed from it was distinguished in the decision of Williams v Roffey Bros , [ 4 ] where the English Court of Appeal held that performing an existing obligation could be good consideration where it conferred some "practical benefit" above what was originally envisaged. In that case, it was held the a subcontractor who had asked for additional remuneration to do previously agreed work was enforceable, as avoid the subcontractor going into bankruptcy (which otherwise would have happened) constituted a practical benefit. The reasoning in Williams v Roffey Bros has been doubted in subsequent cases, although it has not been overruled. Please note the decision of the Court of Appeal in Re Selectmove [1995] 1 WLR 474 which made clear that Williams v Roffey cannot be used to subvert the part-payment of a debt principle accepted by the House of Lords in Foakes v Beer. Important note: We return to this issue when we consider Promissory Estoppel and examine the criteria for the application of relief under that doctrine as first laid out in the High Treescase by Denning J (as he then was) Payment of a smaller sum by a third party Where a third party makes the smaller payment in satisfaction of the larger sum the creditor may not sue the original debtor for to allow the creditor to do so would be a fraud on the third party. Snelling v Snelling [1973] 1 QB 87

Hirachand Punamchand v Temple [1911] 2 KB 330 Gore v Van Der Lann [1967] 2 QB 31 Where a third party agrees to pay a creditor what is due to him, there may also arise a contract between the creditor and the third party which would prevent the creditor from suing the debtor for the balance under the Contracts (Rights of Third Parties) Act 1999. Performance of a duty owed to a third party While the performance of an existing duty owed to a promisor is not a good consideration (Supra) the performance of a contractual duty owed to a third party is a good consideration. Shadwell v Shadwell (1860) 9 CB (NS) 159 P, engaged to EN, was promised 150 per annum by his uncle if he married EN (a pre-existing contractual obligation). P successfully sued to enforce the promise to pay 150 per annum. The principle was affirmed by the House of Lords in New Zealand Shipping v Satterthwaite (The Eurymedon ) [1974] 1 All ER 1015 An agreement to do an act which the promisor is under an existing obligation to a third party to do, may quite well amount to a valid consideration....the promisee obtains the benefit of a direct obligation.....This proposition is illustrated by Scotson v Pegg which their Lordships consider to be a good law. per Lord Wilberforce. Lord Scarman in Pao On v Lau Yiu Long [1980] AC 614; [1979] 3 All ER 65 confirmed the point. Jones v Waite (1839) 5 Bing NC 341 A promise to do an act (as opposed to the actual performance of the act) did not constitute a good consideration the opposite of the holding in Scotson v Pegg and Pao On . Scotson v Pegg (1861) 6 H & N 295 A agreed to deliver coal to B's order. At B's order A delivered the coal to C who had promised A to unload it. A successfully sued C on this promise, despite the fact that he was already under a duty to B to deliver the coal.