 Performance of an existing legal duty, whether a public duty or a contractual duty owed

to the promisor, does not amount to good consideration. Discuss, with reference to
decided cases, to what extent does this view hold true today.

 Introduction
 One of the principles of consideration is that a promise to perform or the performance
of a pre-existing duty, whether public or contractual duty is not good consideration. 
 Public duty - Duty imposed by law of a public officer towards the general public
 Contractual duty - Duties that each party is legally responsible for in a contract
agreement
 In terms of public duties, the promise by an official to act within the scope of his own
duty is not valid consideration. As for contractual duties, the promise to perform a pre-
existing contractual duty is not consideration.

 Performance of existing duty for contractual duty.

 General rule: Performance of an existing duty by contract will not constitute sufficient
consideration
 Stilk v Myrick [1809] 2 Camp 318
 Facts: 
 The P (Stilk) was a sailor on a voyage from London to the Baltic and back
 He was to be paid £5 per month
 During the voyage 2 of the 12 crew deserted and the captain was unable to find
replacement
 He then promised to pay the remainder of the crew more than originally agreed 
 He did not pay and P sued him to recover the extra payment promised
 Held: 
 The captain’s promise to pay more to the other sailors was not enforceable because of a
lack of consideration on the part of the sailors
 The sailors had only done what was contractually agreed 
 The dissertation of the 2 sailors of a ship was seen to be a normal circumstance and the
sailors did not do anything over and above what was contractually agreed. 
 Lord Ellenborough: The agreement is void for want of consideration

 It is mentionable that both Espinasse (public policy) and Campbell(consideration) had

reported this case but in different views. 
 Espinasse: Based the decision on the grounds that public policy should prevent seamen
from demanding extra payment for duties that they were already obligated to do.
 Campbell: Lack of consideration is the reason for the decision and there is no reference
to duress.

Hartley v Ponsonby
(per Gopal Sri Ram JCA in The Golf Cheque Book Sdn Bhd v Nilai Springs Bhd
[2006]Introduction
One of the principles of consideration is that a promise to perform or the performance
of a pre-existing duty, whether public or contractual duty is not good consideration. 
Public duty - Duty imposed by law of a public officer towards the general public
Contractual duty - Duties that each party is legally responsible for in a contract
agreement
In terms of public duties, the promise by an official to act within the scope of his own
duty is not valid consideration. As for contractual duties, the promise to perform a
pre-existing contractual duty is not consideration.

Performance of existing duty for contractual duty.

General rule: Performance of an existing duty by contract will not constitute sufficient
consideration
Stilk v Myrick [1809] 2 Camp 318
Facts: 
The P (Stilk) was a sailor on a voyage from London to the Baltic and back
He was to be paid £5 per month
During the voyage 2 of the 12 crew deserted and the captain was unable to find
replacement
He then promised to pay the remainder of the crew more than originally agreed 
He did not pay and P sued him to recover the extra payment promised
Held: 
The captain’s promise to pay more to the other sailors was not enforceable because of
a lack of consideration on the part of the sailors
The sailors had only done what was contractually agreed 
The dissertation of the 2 sailors of a ship was seen to be a normal circumstance and
the sailors did not do anything over and above what was contractually agreed. 
Lord Ellenborough: The agreement is void for want of consideration

It is mentionable that both Espinasse (public policy) and Campbell(consideration) had

reported this case but in different views. 
Espinasse: Based the decision on the grounds that public policy should prevent
seamen from demanding extra payment for duties that they were already obligated to
do.
Campbell: Lack of consideration is the reason for the decision and there is no
reference to duress.

Hartley v Ponsonby
Held: The crew were entitled to the extra payment promised on the grounds
that either they had gone beyond their existing contractual duty or that the
voyage had become too dangerous, frustrating the original contract and
leaving the crew free to negotiate a new contract.

Performance of existing duty for public duty.

General Rule: Performance of a pre-existing public duty is not a good
consideration. 
Collins v Godefroy (1831) 1B & Ad 950

Facts:
The D (Godefroy) had brought action against an attorney and caused the P
(Collins), to be subpoenaed to attend and give evidence. 
The D was keen to ensure that the P attended and so promised to pay him
one guinea per day while he was at court for compensation for his time. 
The P attended court for six days but was never called to give evidence.
The P demanded to be paid of six guineas as per the agreement but was
not paid. 
The attorney brought action against the defendant for the sum amount that
he was owed.

Held:
The court held that the agreement where the P should attend court was not
supported by consideration. As this was because the P was under public
duty to attend court anyway having been subpoenaed. The law would not
allow someone to recover expenses that occurred in the performance of a
duty that they were obligated to do by law. 

Lord Tenterden said:

“If it be a duty imposed by law upon a party regularly subpoenaed, to
attend from time to time to give his evidence, then a promise to give him
any remuneration for loss of time incurred in such attendance is a promise
without consideration. We think that such a duty is imposed by law.’

The rule that a duty that is imposed by law is not good consideration was
generally supported on the basis that it will prevent public officials from
extorting money in return for performance of their already existing legal
duties. Another way to put it is on the basis that public officials (e.g Police)
owe a duty to the public by providing them with protection or other
services without the need for payment. 

Exception to the general rule 

In collins v Godfrey the basic rule applied was that when a party does
something by which he is already legally bound to do,it can't be sufficient
enough to amount to good consideration. 
the first major exception to this rule was identified in Glasbrook Bros v
Glamorgan County Council,where It will be adequate consideration when
what is given is
more than required by the existing public duty 
,so something extra is added to what the claimant is already bound to do.
The extra element is the consideration for the new promise. This principle
applies where a performance exceeds a public duty as seen in the case of
Glassbrook bros v Glamorgan CC 

Glassbrook bros v Glamorgan CC [1925] AC 270

Facts:
The defendant was the owner of a colliery who asked the police to provide
protection during a miner's strike in the form of a body of officers stationed
on the premises

The police thought that a mobile patrol was sufficient, while the colliery
manager wanted stationary guards .It was finally agreed that the police
would provide the requested service for a payment of £2,200.

The defendant refused to pay,arguing that there was no consideration

because the provision of protection was a public duty and that the police
were merely doing what they were bound to do anyway

Issue
whether the police authority had provided consideration for Glasbrook
Bros' promise to pay.

Held
The lords By a majority of 3:2 held that the police were entitled to be
paid.The police provided additional officers than required,therefore the
police had gone beyond their existing duty and In doing so they provided
good consideration. Mr. Justice Bailhache in his judgment said :—
"There is an obligation on the police to afford efficient protection, but if an
individual asks for special protection in a particular form, for the special
protection so asked for in that particular form, the individual must pay."
Contractual duty :