Fraudulent claims in England in 16th century

There is a component which is very necessary in all of the simple contracts that defined as consideration. Furthermore, it has been developed in order to defeat fraudulent claims in England in the 16th century. Lord Pollock defined consideration as an act of one party, or the agree thereof, is the value for which the promise of the other party is bought, and the promise consequently given for cost is enforceable. [2] Consideration should be like something of value which is promised in exchanging to order for a valid contract to be formed. [3]  Generally, contract law is always being used because it is a feature that can distinguish other forms of contractual agreements. The fact in consideration that consists of something of value is given by the promisee to promisor to show that there is a legal binding of relationship between promisor and promisee in order to fulfill his promises. Any promises are made without giving anything which is meaningful in return and will not be considered as a legal contract.

Consideration can be more to the positive or negative, it depends on where you are judged. It means, consideration can be promised to something, or not doing anything (forbearance) as with a restrictive covenant. There are six rules of consideration which consist of all simple necessary contracts, It can be future (executory) or present (executed), past consideration is not acceptable at all, it is fixed that consideration has to come from the promise, but do not have to move to the promisor, It does not need to be adequate, or commercially realistic, and It cannot be too unclear, it has to be adequate in the observe of the law. [4] In this rules, only the promisee has the legal right to sue the promisor. This essay has structures and proposes to explain in some further ways. In the beginning, this essay is about explaining the cases of traditional approach and new approach. Besides that, this essay is going to explain as well what the differences between traditional approach and new approach are.


A legal concept relating to the performance of legal duty is classified as consideration which defines as the pre-existing duty rule. [5] As the example, due to payment, a debt is paid by the promisee. Let say if A is promisee and B is promisor. Thus, if a contract bound A and which require B to pay $100 for services which has already provided, A which is the promisee is going to execute supplementary services which consideration does not support, if B's has returned the promise means to pay the sum which has already due. This approach is taken by the law even if A has regarded B's promise as costly because the promise will have no worth 'in the eye of the law', A is free of charge to take back, and not responsible for the infraction of the contract in doing that works as well. It essentially follows that a promise is less to do than the promisor's presented obligation that will not be able to count as deliberation. And a promise also needs to pay debt part which is not able to be consideration for promise to approve the overall debt of the part payment in discharging.

The basic principle is applied to forbearances in performance of a duty to the promisor. If all of things that the promise has assumed to do is like what he or she had been already under the pre-existing duty to the promisor to be done or refrained. And then the forbearance absolutely could not be in a good consideration. [6] Let says if X is promisee and Y is promisor. Traditional approach is contractual obligations which is performed by his or her to Y and will not be regarded as precious consideration to carry any promises by Y. According to Stick v Myrick (1809) 2 Camp 317; 170 ER 1168, the fact is about there is a plaintiff which is also known as seaman that has the name, Stilk. [7] He is prosecuted to make progresses about additional wages that the captain of ship has promised. The case is about the enduring crew that had been promised by the captain and abandoned by both sailors, if the ship was going back to London and has been done and they could share the deserters’ wages. Furthermore, the held is about he has been claimed as failed. By working back to the ship, although understaffed, he had finished nothing. In particular, if the general rule applies in Stilk v Myrick (1809) there are certain limitation, but it can be solved by three situations such as, where an existing agreement is terminated by the parties and a new one is substituted for it; where an additional payment is promised in compromise of a bona fide dispute; and where additional risks are undertaken or where the promise provides some additional act or forbearance.

Many people have criticized about Stilk v Myrick (1809) cases, as Reynolds and Treitel explains that whether the law is about the relationship between the master of the vessel and the sailors, or the owner of the vessel and the sailors. [8]  If the original contract was in fact between the sailors and the ship owners, Stilk v Myrick should be considered inconsistent with the authority that decides the performance of pre-existing duty owed to a third party who may have a good consideration. Furthermore, the rules have been criticized for being unable to meet expectations for negotiating contracts and ignore all the benefits received by the promisor as a result of the contractual variation. However, the court’s concern did not so much the incidence of considerations that appear to prevent extortive agreement. Until now, the Law Revision Committee's recommendation to remove the rule, but was not implemented by the governments of the past or by the any other government of the day.

New approach is more like a promise by the promisee in order to perform his or her existing contractual obligations that is going to provide costly deliberation which supporting a supplementary promise to the promisor to pay more, if give the promise is defined as the result, promisor surely will get the practical benefit. Generally, the new approach have many cases, but in this essay we only discuss two cases such as, Williams v Roffey Bros & Nicholls (Contractors) [1991] 1 QB 1 and Musumici V Winadell Pty Ltd (1994) 34 NSWLR 723.

Firstly, Williams v Roffey is one of English law which is used in Australia. According to Williams v Roffey Bros & Nicholls (Contractors) [1991] 1 QB 1, the fact is about the woodwork has been subcontracted by the accused on flat renovations of a series to the plaintiff by concurring and pay around £20 000 for the overall job. [9] The plaintiff as William has a monetary obscurity that caused by the defendants that have a target in order to finish the project within the given time and has concurred to pay extra £575 in each of the flat, while an additional of the eight flats has been finished by not receiving supplementary payment that the plaintiff had prosecuted. Furthermore, the held is about The supplementary cash has been entitled by the plaintiff because to carry out his existing contractual obligations that had been agreed, the defendants had prevented in the two of the late achievement of the penalty in the contract, problem, and disbursement of keeping other carpenter. [10] As a result, a “practical benefit" has been secured by Williams and has been being continued by the work. Therefore, it was kind of excellent contemplation to the promise of them.

A new approach, A summary which is had by Glidewell LJ, If the contract has been entered by A with B for doing work, or goods or services to be supplied to B in returning to the payment by B; and at several stages before his obligations has been performed completely by A under the contract B which has a reason to hesitation whether A will or can comprehensive his side of the agreement and B make promise to pay in return for A’s promise to achieve his contractual duties on time. As a consequence of giving his promise, b acquires in apply a benefit, or prevents a disbenefit. Then, B’s promise has not given as a consequence of economic pressure or deception on the part of A, and then, the advantage to B is proficient of being consideration for B’s promise, therefore the promise will be legally binding. [11] 

Every case at least has a criticism, like Stilk v Myrick. Williams v Roffey also had criticism from the public. According to the identification of Glidewell LJ that the approach by creating new methods that are more formal may cause unsatisfactory results where the court has to investigate things like the causes of damage to ensure the truth. [12]  Starting from Stilk v Myrick members of the court fix and limit the application of the principles. Treitel explain that the promise made by the owner of the ship was grounded. In addition, the owner of the ship was actually also get practical benefit in return for his promise. According to reports from Stilk v Myrick was quoted in Williams v Roffey, a promise that ship owners cannot be implemented as a consideration. [13]  In fact, it is very difficult to match Stilk v Myrick with Williams v Roffey. At least there are commentators who suggested that Williams v Roffey should be recognized as a new development of Stilk v Myrick. Although the new approach, promisee must suffer losses on wages to be paid. It could be change if Williams wants to continue working to increase the wages of salary, he can reduce the losses his made by seeking a more profitable job.

Secondly, another case from new approach is Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723. According to Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723, the fact is about Winadell that was renting a fruit store in a shopping center to Musumeci. Winadell then rented the other shop in the center to the business of competing to sell fruits. Musumeci asked to reduce prices to compensate for the rental price and Winadell had agreed. When it has been emerged disputes, Winadell was trying to end and Musumeci has been seeking damages for breach, relying in part from what was promised by Winadell to reduce rental costs. [14] Moreover, the held is about applying the Williams v Roffey Bros & Nicholls (Contractors) [1991] 1 QB 1 case, the promise had been binding. The practical benefits Winadell is derived from lower rental promotion that had said about Musumeci enhanced the capacity to remain in his work, and being able to carry out their own future by reducing the lease obligation for the business despite the new competition. This has been accomplished by Winadell capacity to maintain a full shopping center which is a valid consideration to vary slightly.

The important thing is Santow J in Musumeci v Winadell Pty Ltd (1994), when faced with a situation of promissory estoppels is not so much help promisee. [15] Thus, he applied to the Williams v Roffey principle in payment part of duty to accept the existing contract to be enforceable. The plaintiff asking for reduced the price of shop rents. Based on economies of scale, trade competition may cause financial ruin to the plaintiff. The plaintiff claimed a declaration that they do not break the rules and types entitled to pay a reduced rent.


From my point of view, the differences between traditional approach and new approach are the new approach provides a practical benefit. It means, the promisor needs to get something extra in exchange for her or his additional promise. Whereas the old approach does not support any additional promise, so the promisor does not obtain any of the something extra. Both of them are different because the new approach is kind of legal modernization from the old approach, in other words the new approach is the improvement of the old approach. In my opinion, I think new approach has its better way of consideration than traditional approach because the promisor will obtain something extra as well in exchanging for additional promise.