Dr.

Ram Manohar Lohiya National Law University, Lucknow

SEMESTER II

Project

On

“Performance of Pre-existing legal obligation as consideration”

In the subject of

“Contracts-I”

SUBMITTED TO: Dr. Visalakshi Vegesna

Lecturer in law

Submitted by: Ankit Namdeo

Roll no. 25

Section: “A”
 LIST OF CASES

Collins v. Godefroy (1831) 120 E.R. 241.

England v. Davidson (1840) 11 A. & E 856.

Glassbrrok Bros v glamorgan CC [1925] AC 270.

Melroy v. Kemmerer, 67 A. 699.

Shadwell v Shadwell (1860) 142 ER 62.

Stilk v Myrick (1809) 170 ER 1168.

Ward v. Byham [1956] 1 W.L.R 496

Williams v. Roffey Bros & Nicholls [1990] 1 All ER 512.

TABLE OF CONTENTS

(A) THE PERFORMANCE OF A PUBLIC DUTY

(B) THE PERFORMANCE OF A DUTY OWED ALREADY TO THE PROMISOR
(C) THE PERFORMANCE OF A DUTY OWED ALREADY TO A THIRD PARTY
(D) CRITIQUE OF THE RULE
(E) THE PREVENTION OF COERCION FALLACY
(F) THE LACK OF CONSIDERATION FALLACY
PERFORMANCE OF A PRE-EXISTING LEGAL OBLIGATION AS CONSIDERATION

Performance of a pre-existing legal obligation as consideration can arise in three different

situations, namely; (a) the performance of a public duty; (b) the performance of a duty owed
already to the promisor; and, (c) the performance of a duty owed already to a third party.

(A) THE PERFORMANCE OF A PUBLIC DUTY

When the promisee is doing something which is a duty imposed by some public
obligation, there is a reluctance to allow this to be used as the basis for contract. It would
be contrary to public policy to allow this to be used as consideration. The difficulty is
then discerning whether the refusal to enforce such a contract is on the basis that it is
vitiated as being contrary to public policy or because the configuration provided is
invalid. The leading case with regard to the above proposition is Collins v. Godefroy1. In
this case, a promise had been made to pay six guineas to a witness, who was under an
order to attend the court, for his trouble. The Court held that an attorney who has
attended on subpoena as a witness in a civil suit, cannot maintain an action against the
party who subpoenaed him. If it be a duty imposed by law upon a party regularly
subpoenaed 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. This promise was unenforceable due to want of consideration, as the duty
to attend the Court was imposed by law.2
However, this logic of the Court applied in Collins case seems hard to reconcile with the
rationale in further cases. In England v. Davidson, 3 where the defendant offered reward
to whoever could give such information as would lead to the conviction of a felon.
Plaintiff, who was a constable of the district where the felony was committed, gave such
information, it was held that a public officer cannot enforce a promise by a private
citizen to pay him money for doing his public duty.4

1
(1831) 120 E.R. 241.
2
“The Modern law of Contract”, Richard Stone, Sixth edition, Cavendish Publishing Limited, 2005, Page 83 Para
4.
3
England v. Davidson (1840) 11 A. & E 856.
4
“Chitty on Contracts” General Principles, Volume I, twenty-ninth edition, Thomson Sweet and Maxwell, London
2004, page 249 Para 1.
 However, it shall be noted that a person who is under a public duty can provide
consideration for a promise by doing or promising to do more than he was obliged by law
to do. This applies to whatever the nature of the duty, so that even as regards public
officials, consideration may be provided by exceeding their statutory or other legal
obligations.5 In the case of Glassbrrok Bros v glamorgan CC 6 in course of a strike at coal
mine, the owners of the mime were concerned that certain workers who had the
obligation of keeping the mine safe and in good repair should not be prevented from
carrying out their duties. They sought the assistance of the Police in this. The police
suggested the provision of mobile group, but the owners insisted that the officers should
be billeted on the premises. For this the owners promised to pay. Subsequently however,
they tried to deny any obligation to pay claiming that the police were doing no more than
fulfilling the legal obligation to keep the peace. It was held by the House of Lord’s that
the provision of the force billeted on the premises went beyond what the police were
obliged to do.
Viscount Cave LC, accepted the the police were simply taking the steps which they
considered necessary to keep the peace, members of the public who already pay for
theses police services though taxation could not be made to pay again. Nevertheless, if at
the request if the members of the public the police provided services which went beyond
what they reasonably considered necessary, this could provide good consideration for a
promise of payment.7

In the case of Ward v. Byham 8 the father of an illegitimate child wrote to his mother,
from whom he was separated, saying that she could have the child and allowance of 1
pound a week, if she could prove that the child was “ well looked after and happy and
also that she is allowed to decide for herself whether or not she wishes to come live with
you.” The father refused to continue the payments after the marriage of the mother to

5
“The Modern law of Contract”, Richard Stone, Sixth edition, Cavendish Publishing Limited, 2005, page 85 Para 1.
6
Glassbrrok Bros v glamorgan CC [1925] AC 270.
7
Supra note 5, at Page 85 Para 1.
8
[1956] 1 W.L.R 496
 another man. It was held that the mother was entitled to enforce the father’s promise even
though she was under statutory duty to maintain the child.

The ground for the decision that the mother had provided consideration by showing that
she had made the child happy: in this way, she could be said to have done more than she
was required by law to do,9 And to have conferred a factual benefit on the father or on the
child, even though she may not have suffered any detriment. But if a son’s promise not
to bore his father is not good consideration is hard to see why a mother’s promise to
make her child happy should, for the present purpose , stand on a different footing. There
is with respect, force in Denning LJ’s view that the mother provided consideration by
merely peforming her legal duty to support the child. There was certainly no ground of
public policy for refusing to enforce the promise. 10

(B)THE PERFORMANCE OF A DUTY OWED ALREADY TO THE PROMISOR

The traditional view as to the performance of a duty already owed to the Promisor could
not amount to consideration. This was established in the leading case of Stilk v Myrick 11
in which, during the return voyage from London to Baltic, two sailors had deserted and
the captain was unable to find replacement for them. He therefore promised to divide the
wages of the two deserters amongst the remaining crew members in exchange for them
sailing the ship short-handed on the home voyage. Largely on the grounds of public
policy, to deter extortion, the action brought by one of the crew, to enforce this promise,
failed. An alternative reason for the decision was that the crew members provided no
consideration for the caption’s promise, as there were only fulfilling their existing
contractual obligation by sailing the ship home. 12 There may have been sound policy
reasons for the Courts refusing to enforce the promises of this kind. It was presumably

9
Ibid., at page 499.
10
“Chitty on Contracts” General Principles, Volume I, twenty-ninth edition, Thomson Sweet and Maxwell, London
2004, page 250 Para 1.
11
(1809) 170 ER 1168.
12
“Law of Contract”, Laurence Koffman and Elizabeth MacDonald, Sixth edition, Oxford University Press, New
York, 2007, page 72, Para 4.41.
 felt that this type of situation gave seamen an undesirable to bargain for higher wages to
complete voyages which they were already bound to complete. But there appears to be no
evidence of the seamen making any demands in Stilk case and thus was no evidence of
extortion in the case itself. 13The objection to this general rule was that it stuck down
quite legitimate bargains as well as potentially extortionate ones. It shall be noted,
however, that if the circumstances on a voyage were to change so radically as to make the
trip positively dangerous one, seamen were probably able to enforce any additional
promise of remuneration made by the captain.14

However, the rule in Stilk case was more based on the public policy, the rule in Stilk case were
refined by Roffey Bros & Nicholls, 15 the defendant building contractors were under
contract to refurbish a block of 27 flats. They sub-contracted the carpentry work to the
plaintiff for 20, 000 pounds. After completing some of the work, and receiving interim
payments, under the sub contract, plaintiff found that he was in financial difficulties
because the remuneration under his contract with the defendants was too low and he had
failed to supervise his workmen properly. The defendants were liable under a penalty
clause in the main contract, if the work was not completed on time, and they were aware
that the Plaintiff was in difficulties because the carpentry work has been underpriced.
They called a meeting with the plaintiff at which they promised an extra 10, 300 pounds
to ensure that the plaintiff continued with the work and finished it on time. The extra
payment thus agreed was to be at the rate of 575 pounds per flat on completion. The
plaintiff continued working but the defendants did not keep u the additional payment
agreed earlier. The plaintiff then stopped work on the remaining flats, and sued the
defendants for the additional payments, the defendants argued that no consideration had
been provided by Plaintiff.

The court of Appeal held that the Plaintiff was entitled to the additional Payments for the
flats completed under the agreement. There was no evidence; the original contract under
13
“Law of Contract”, Laurence Koffman and Elizabeth MacDonald, Sixth edition, Oxford University Press, New
York, 2007, page 72, Para 4.42.
14
Ibid.,
15
[1990] 1 All ER 512.
 priced the work and the defendants understood this. And they commenced the process of
renegotiation. Accordingly, the Plaintiff did provide consideration for the defendant’s
promise of additional payments. This continued a binding agreement.

(C) THE PERFORMANCE OF A DUTY OWED ALREADY TO A THIRD PARTY

The leading case as to this matter is Shadwell v Shadwell. 16 The facts of this case arise;
Lancey Shadwell was engaged to be married to Ellen, received a letter promising to pay
150 pounds, yearly during the life of Charles Shadwell her Uncle, as promised to assist at
starting. It also state that if the nephew’s annual income as a barrister reached 600
guineas then the payment would cease. Palintiiff married Ellen, and income never
amounted to 600 guineas a year. Charles Shadwell did not make all the payments that he
promised and after his death, the Plaintiff sued her uncle’s personal representative for the
arrears. The defendants argued that Plaintiff had provided no consideration for her
uncle’s promise as she was already bound to marry Ellen before the promise was made. It
was held that Lancey had suffered a detriment because in reliance upon the promise she
might have incurred financial liabilities. It was also held that a benefit was conferred on
the Uncle because his niece’s marriage was clearly a matter of some importance to him.

CRITIQUE OF THE RULE

Courts quickly recognized that the pre-existing duty rule was flawed in two significant
ways. First, it facilitated another kind of abuse. The pre-existing duty rule could encourage a
savvy party who is familiar with the rule to dissemble, or even lie, by seeming to agree to
changing an existing contract knowing all the time that he can renounce the change in the
contract with little or no consequences.17 Secondly, the rule often frustrated the presumption and

16
(1860) 142 ER 62.
17
Charles L. Knapp, Reliance in the Revised Restatement: The Proliferation of Promissory Estoppel, 81 COLUM.
L. REV. 52, 72 (1981) at page 72 Para 2.
expectation of what the reasonable layperson believed the law that if two legally competent
parties mutually agree to modify their contract, the modification is binding on the parties. 18
Although the pre-existing duty rule, absent the exclusions and exceptions that have riddled its
application, is simple, clear, and certain, it is also too restrictive and too expansive. Therefore it
fails to reach its intended objective of permitting only freely made modifications and preventing
coerced modifications.19

A. The Prevention of Coercion Fallacy

The pre-existing duty rule is not an effective device to prevent coercion. Parties to a contract
may agree freely to modify a party’s performance, in the absence of consideration, without any
coercion, threat, or other improper behavior.
That is, the presence of consideration does not ensure the voluntariness of the modification;
the absence of consideration does not signify coercion. Neither the presence nor absence of
consideration is a trustworthy indicator of the existence of coercion. The pre-existing duty rule
does not take into account those factors that would truly indicate the existence of coercion,
including “the net amount given up by the promisor, the nature of the relationship of the parties,
the alternatives available to the promisor, and the means employed by the promisee in achieving
the modification.”20 As a result, the pre-existing duty rule is not an effective device for
distinguishing coerced or opportunistic modifications from justified modifications, and utterly
fails to accomplish its purpose of policing coercive modification.

B. The Lack of Consideration Fallacy

As stated above, under the pre-existing duty rule, a promise to pay more money for someone to
do that which he is already under a contractual duty to do is unsupported by consideration, and is
therefore unenforceable. The rationale is that one receives nothing new for his promise; he only

18
Ibid.,
19
Robert A. Hillman, Contract Modification under the Restatement (Second) of Contracts, 67 CORNELL L. REV.
680, (1982) at page 685 Para 4.
20
Ibid., at page 689 Para 2.
receives that which he was already entitled to receive. However, it may be erroneous as one also
has the right not perform the contract risk being sued for damages. Accordingly, if he deems it to
be in his interest, economic or otherwise, he may be more than willing to pay more money to
induce the other party not to exercise his right to breach. 21 There is, in fact, “new” consideration:
the promise to pay more money is exchanged for the other party’s relinquishing his right to
breach. Or in other words a party is bargaining for his contract to be performed rather than being
compensated for non-performance. The pre-existing duty rule “fails to take into consideration the
practical importance of the difference between the right to a thing and the actual possession of
it.”22

BIBLIOGRAPHY

Books

1. “Chitty on Contracts” General Principles, Volume I, twenty-ninth edition, Thomson

Sweet and Maxwell, London 2004.
2. “Contract Law: text cases and materials”, Ewan Mckendrick, Oxford University Press,
New York, 2008.
3. “Law of Contract”, Laurence Koffman and Elizabeth MacDonald, Sixth edition, Oxford
University Press, New York, 2007.

21
Corneill A. Stephens, ABANDONING THE PRE-EXISTING DUTY RULE, Houston business and tax journal,2008
at page 365 para 1.
22
Melroy v. Kemmerer, 67 A. 699, 699 (Pa. 1907)
 4. “The Modern law of Contract”, Richard Stone, Sixth edition, Cavendish Publishing
Limited, 2005.

Journals

The Digest Annotated British Commonwealth and European cases, Third reissue, Volume
42(I), Butterworth’s.

Kevin M. Teeven, Development of Reform of the Preexisting Duty Rule and Its Persistent
Survival, 47 ALA. L. REV. 387, 391 (1996)

Corneill A. Stephens, ABANDONING THE PRE-EXISTING DUTY RULE, Houston

business and tax journal, Volume VIII 2008

Robert A. Hillman, Contract Modification under the Restatement (Second) of Contracts, 67

CORNELL L. REV. 680, (1982)

Charles L. Knapp, Reliance in the Revised Restatement: The Proliferation of Promissory

Estoppel, 81 COLUM. L. REV. 52, 72 (1981)