Justifying the Traditional Consideration Approach

This essay will justify the traditional approach which is frequently used in courts to indicate whether the terms of a presented case provide considerable points and information to claim consideration for a promise made by the promisor, also how it had been impacted by promises that were made whether they can be enforced after the contract has been already formed by the promisor and a promise. It shall also be discussing and investigating a number of topic-related cases and justifying the decisions in each and every one of them.

A contract may be defined as an agreement that the law will enforce.1 below [1] When persons make a promise and agree on this promise, they have produced a contract, contracts relating to consideration are apprehensive with the bargain of the contract, a contract is to be based on an exchange of promises, each party to a contract must be both a promisor and a promise, they also must each get a benefit and each go through a detriment such as harm, damages and disadvantages. This benefit or detriment is known as. [2] Consideration differ from one case to another, consideration must be valued in the law court for example Thomas v Thomas (1842) [3] ,That case does not include promises of love and liking, having a bet and playing games, it is “A one sided promise which is not supported by consideration is a gift’’ (Sir John 2007). The law does not enforce any gifts except if they are made by deed or the right was granted.

Stilk vs Myric will be the described and explained in the first paragraph, the argument will include facts and essentials during the case that allowed the court to decline stilk’s claim, and also will be explaining the main elements of the case and how they are important in the court’s word whether they plaintiff/defender’s are eligible for valid consideration.

Williams v Roffey Bros & Nicholls which is going to be my second paragraph, the argument will discuss issues such why the court did not undertake the traditional approach like it did in Stilk vs Myric, secondly why Williams was entitled to the payment, what are the practical advantage and disadvantages to the promisor and a promise.

Musumeci v Winadell Pty Ltd which will be my third paragraph, I will be explaining how the resemblance in the court decisions in Williams v Roffey Bros & Nicholls and how it may vary, and how the court would grant a practical advantage, and finally how consideration would be given.

In the final paragraph, I will be concluding the essay by summarising and comparing the key points and elements of the body and re-state a final viewpoint.

The law is very clear in regards to promising to achieve a job or duty that is previously allocated to the other party due to the fact that it is already forced by contract does not constitute valid consideration, however, promising to achieve a contractual duty allocated to a third party, can be valid consideration. It is because of a person may still be obtaining value even when they personally are not benefiting of the issue promised [4] , an existing contract requirements to be used again as consideration in a later contract originated in the case of Stilk v Myrick [5] , main facts of this case are; a crew was to sail to the sea and back to London with the defendant as a captain, 2 out of 11 sailors deserted a ship, the defendant could not find workers, so he decided to promise to pay the remaining crew extra money if they sailed the ship back, but after arriving back to London, the defendant did not keep his promise and decided to refuse to pay the extra money, however the remaining crew sued, the defendant productively argued that the crew had not provided consideration for his promise because they were already obliged to sail the ship as a part of an pre existing contract, the reason why the court did not take the traditional approach due to the fact that the case held that the workers were already bound by their contract to sail back and to meet such emergencies of the journey, promising to sail back was not valid consideration, thus the captain did not have to pay the extra money. The case of Stilk v Myrick states how one of the parties was unfairly disadvantaged but as a consideration rule, the case of Stilk v Myrick has an existing contractual duty will not amount to valid consideration which means and also as a rule if a party has an existing contractual duty to achieve, this duty cannot be used as consideration for a new promise, only if the party goes ahead of their existing obligation like how it is stated in the case of Hartley v Ponsonby [6] which is a very similar case but the crew acted differently, the case of Hartley v Ponsonby shows a similar refusal by the captain to pay extra money, but they remaining crew were entitled to the payment due to the fact that they had gone beyond their existing contractual duty or that the journey had become too risky provoking the original contract and also leaving the crew free to settle a new contract [7] .

The law in Stilk v Myrick has been judge accordingly as being too insensitive since applying it may often go beyond the expectations of parties who believe their mutual promises to be obligatory, a number of exceptions to under that the rule have now been developed in the law, for case in point is the case of Williams v Roffey Bros. & Nicholls (Contractors) Ltd. The defendant building contractors entered into a contract with the plaintiff sub-contractors to renovate 27 flats for an assured price, the plaintiffs were to receive payment after the work was done, after renovating was done to the roof and 9 flats, the plaintiffs got into financial difficulties, due to the fact that the price they had charged in the contract was sufficiently low to wrap the cost of the work, defendants promised to pay the plaintiffs an additional amount for every flat completed on time, nevertheless, at the time of the deadline for completion set by the contract, the defendants refused to pay the plaintiffs the extra amount of prmoissed money, in comparison with Stilk v Myrick, the defendants states and argued that the promise were not supported by consideration, but in Williams v Roffey Bros. &

Bilo

Smith, Sir John, Smith and Thomas, A Casebook on Contract (10th ed, 1996)

Frey and Phyllis Hurley Frey, Essentials of Contract Law, (1st ed, 2001)

Parker and Box, Business Law for Business Students (1st ed, 2008)

Stephen Graw, An Introduction to the Law of Contract (6th ed, 2008)