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Collins v Godefroy (1831) 1 B & Ad 950; 109 ER 1040

Performance of an existing duty is no consideration.

Facts:

Godefroy, the defendant, brought an action against an attorney for negligence and caused Collins, the plaintiff, to be subpoenaed to attend and give evidence. Godefroy was keen to ensure that Collins attended as this would help his case, so he promised to pay him one guinea per day he was at court as compensation for the loss of his time. Collins attended court for six days but was not called to give evidence. At the end of this Collins demanded payment of six guineas as per the agreement. When this was not paid, he brought an action against the defendant for the sun owing.

Issues:

The question for the court was whether the agreement between the plaintiff and the defendant was supported by valuable consideration.

Held:

The court held that the agreement that the plaintiff’s should attend court was not supported by consideration. This was because the plaintiff was under a public duty to attend court anyway having been subpoenaed. The law would not allow someone to recover expenses incurred in the performance of a duty that they were merely obliged to do anyway by law. Lord Tenterden said (at 956):

‘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’.

Consequently, the agreement was unenforceable.


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