2. •Referred to as a badge of enforceability
•It is mutuality of agreement, something be lost or gain
by both the promisor/promissee (Currie v misa –
detriment or forbearance suffered by promisor and
promissee)
•Benefit or detriment is the consideration, thus it must
be valuable
•One sided promises amount to gift, something has to be
passed (Dunlup v Selfridge – nothing was passed from
the promisee)
•When consideration is not obvious, equity is use
through estoppel (eringthon v eringthon – father died
after having bought and promised his son and his wife
that he would transfer property in their name if they kept
up mortgage payments. Other family members tried to
take the house but was estopped because they were
paying the mortgage ).
3. Executory Consideration – future promises to do
something like for example supplying goods for future
performance
• Re McArdle – where it was suggested that in consideration for carrying
out alterations (though all the work on the house had been completed at
the time the document was signed).
Executed –similar to a unilateral contract where one
person makes a promise for when the act is completed.
• Carlill v Carbolic smokeball company
4. Must not be past – A gives b a ride and upon arrival B promises to give
A money for petrol. Promise not enforceable since the ride had already
happened:
•(Re MCardle, Plaintiff carried out work refurbishing a house that his siblings had
beneficial interest. He asked them to contribute towards the cost, but this was not
enforceable because work was completed before any promise of payment was made.
Exception: Act constituting consideration must be done at the
promisor’s request
•Lampleigh V Brathwaite – B killed a man and asked Lh to get him a pardon for a fee.
Previous request and subsequent promise was treated as the same transaction
5. Must be sufficient, need not be adequate:
having value means it is real/sufficient
• Chapple v Nestle – special offer being made to obtain a
record with three wrappers, copyright was owned by nestle
who claimed breach, the wrappers represented sufficient
consideration – courts not concerned whether the deal was
bad)
Must move from the promisee – to enforce something must be
provided
• Tweddle v Atkinson – Father of a bride and groom
promised to give them some money after they
were married and he died. Son sued the executor
but was unsuccessful because there was no
consideration and he was not a party to the
contract.
6. Performance of pre-existing duty – eg public duty
contrast with a person exceeding his duty
• Collins v Godfrey – persons being paid to go testify when he had already
been subpoena thereby having a legal duty to do so
Glassbrook v Glamorgan CC – Officers protecting striking
minors but was asked to stay on the premises. They had
a duty to perform but they are entitled to determine how
that duty would be performed.
7. Existing contractual duty – already bound under a contract
•Stilk v Myrick-two sailors abandoned a ship and the captain agreed to pay the others if
they would sail the ship back – unenforceable as they were already legally bound to do
so and making a promise to sail back was not valid consideration
Williams & Rofley redefined this principle to say that if in the
bargaining consideration their is a practical benefit (eg getting some
additional benefit – in this case Roffley would get a chance of the
completion of the project on time (performance) and Williams would
get an additional payment)
8. Pinnel’s Case – P was owed some money and the def paid a part of debt.
This did not amount to valid consideration unless at the promisor’s
request it is made 1) before the due date; 2) with a chattel; 3) to a different
destination
• Exception: if something new is introduced into the relatinship it will be
binding.
Contract variation - Stilk v Myrick-two sailors abandoned a ship
and the captain agreed to pay the others if they would sail the ship
back – unenforceable as they were already legally bound to do so –
contract could not be varied
• Williams & Rofley redefined this principle to say that if in the
bargaining consideration their is a practical benefit (eg
getting some additional benefit – in this case Roffley would
get a chance of the completion of the project on time
(performance) and Williams would get an additional payment)
9. Equitable doctrine design to Requirements:
stop a person from going •A pre existing contract/legal
back on his promises not Lord Denning set the obligation
supported by consideration following principles: a •Unambiguous promise
•High Trees case – deals with the promise intended to be •Change position
modification of rent payable binding, intended to be •Must be equitable for promisor to
during the second world war and go back on his promise
acted on, in fact acted on,
the promise to accept part was to
accommodate the circumstances
is binding in so far as its
of the war and the principles in terms properly apply
Pinnel’s case applied
10. Pre-existing •Combe v Combe – a husband promising to maintain wife. Not
enforceable as estoppel was being used as a sword and not a
contract/legal shield
obligation
•Promisee relied on the promise which provides the justification
Clear unambiguous for enforcement - Hightrees
promise
•Promise is usually intended for the duration of the
contract, however under estoppel the promise may be limited.
Change position - Hightrees – the promise of the reduced rent is only good while
the second world war continued.
Must be inequitable •Baird v spencer – Plaintiffs sued Spencer for stopping them
from supplying clothes for them for years , though there was no
for the promisor to go express contract. It failed as there was no certainty of contract
and estoppel could not create its own cause of action and
back on his promise provide a remedy
