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Published: Fri, 02 Feb 2018
A promise made to you will not necessarily be enforceable
Consideration means that a promise made to you will not necessarily be enforceable in the courts unless you can establish that you have given something for it. Suppose I promise to deliver a ton of gravel to you next week – you get your shovel and barrow ready, and I don’t turn up. I probably would not be liable to you in damages, because you haven’t given anything in return, and merely getting your barrow ready would not be sufficient reliance to make it enforceable. However, if at the time of making the arrangement, you said that you would pay me $10 per ton for the gravel that would be sufficient consideration. A promise to pay is sufficient to count as giving something, even though the promise is not to be put into effect for some time yet.’’
What is Constitute Consideration?
Consideration is one of the three essential elements of a valid contract. A promise is made without consideration; it does not constitute a valid contract and cannot be enforced in law. Only the contract that has valuable consideration is a valid contract. In a common promise unconfirmed by consideration is not a binding contract. A promise is give without consideration but is intended by the parties to affect an existing contract between them which has been acted upon by one party, and then such promise may be used as a defence by the party to enforce the existing contract. Valuable consideration has been defined as some right, interest, profit or benefit accuring to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other at his request.
Consideration may be executed or executor, but it may not be past, it need not be adequate, but it must be of some value; and it must move from the promise. In the case of Thomas v Thomas (1842) 114 ER 330, QB, the court held that even though the payment of £1 a year towards the ground-vent was a very small sum, it was a valuable consideration and enough to complete the contract. Consideration must be clearly associated with the promise, and past consideration is generally unacceptable. In the case of Re McArdle (1951) 1 All ER 905, CA, the occupants of a house carried out various repairs and improvement, and after the work was complete the beneficial owners of the house promise to pay for this work. They did not pay and the occupants sued. The court of an application held that the consideration for the promise was past and there was no contract. In another way, the occupants failed in the suit because the beneficial owners of the house made the promise after the work was complete.
In another case Lampleigh v Braithwait (1615) 80 ER 255, Common Bench said that D asked P to get him a royal pardom. P successful in obtaining to pay him £100. The majority of breach held that where D makes a request that P does his same service is performed, D promises to pay for it the promise and the request go together and there is a binding contract. However, the performance of an existing duty cannot constitute consideration. In the case of Collins v Godefroy (1831) 109 ER 1040, KB, D’s subpoena P as a spectator. In court and promise to pay him some fee for his time. D did not pay, in the court held that since the subpoena compulsory a legal duty on P to appear at court, this cannot constitute consideration.
What is the factors affecting the court’s decision in the findings of ‘consideration’ in relation to performance of an existing duty?
An authority has a general duty to do, but when an individual desires special service which the authority is not obliged to carry out but the authority can effectively carry out such service, then the authority may “lend” the service for that purpose in consideration of payment. A party is under a legal duty or an existing duty to carry out an obligation. It can’t be sued for any some promise. If other party refuse to pay this for service rendered in relation to his existing duty. In addition, if an individual desire some special service from a not within his duty, the A may “lend” such service in consideration of any payment.
A good example for such statement was considered. In the case of Ward v Byham (1956) 2 All ER 318, CA. In the February, 1955, it has a claim for the sum of £1 a week in respect of the maintenance of a bastard child. The father and mother was lived together unmarried for four or five years, and a little girl was born. While the father and mother were living together, the father went out to work and maintained the household, but the father turned the mother out. He put the child into the care of a neighbour and paid the neighbour £ 1 per week. Meanwhile, mother found a work as a housekeeper to a man who was ready to let the child to come too. The mother wanted the child to be with her and she wrote a letter to the father for asking the for the child and £1per week for maintenance which was the sum the father has been paying the neighbour.
Lately, the mother bring this action to claim from the father should pay her £1 per week, even though she has married. To the claim there said that there was no consideration for the promise by the father to pay £1 per week, because when she looked after the child the mother was only legally bound to do there is no consideration in the law. By the law, the mother of an illegitimate child is bound to maintain it, whereas the father is under no such obligation.
The second example is Combe v Combe (1951) 1 All ER 767, CA. This case said about Mr and Mrs Combe were a married couple. Mr Combe promised Ms Combe that he would pay her an annual maintenance. After they had marriage and finally fell apart and they were divorced. Mr Combe refused to pay any of the maintenance he had promised. After seven years, Ms Combe brought an action against Mr Combe to have the promise obligatory. There was no consideration in exchange for the promise and so no contract was formed.
Instead, she argued promissory estoppels as she had acted on the promise to her own detriment. At first instance the Court agreed with Mrs Combe and enforced the promise under promissory estoppel. However this decision was then appealed. Judgment Denning LJ reversed the lower court decision and found in favour that Mr Combe. He elaborated on the doctrine from High Trees. The promissory estoppel created the cause of action where there was none. In this case, the court could not find any consideration for the promise to pay maintenance. At the last, even if the wife had promised to not apply to court for maintenance, there would have been no consideration, because one cannot waive the statutory right to apply for maintenance.
In my opinion, between Ward v Byham (1956) 2 All ER 318, CA and Combe v Combe (1951) 1 All ER 767, CA. I agree Ward v Byham (1956) 2 All ER 318, CA. I think that the letter shows that there was consideration for the agreement and promise of the father. After the mother was made to leave the home the child in fact stayed with the father until July. The terms of the father’s letter suggest that he was animated by a concern for the well-being of the child. The phrases that he uses are evidence of that. When the mother asked for the child, the answer was in the terms of the letter. Counsel for the father submits that there was a duty on the mother to support the child, that no relationship proceedings were in prospect or were contemplated, and that the effect of the arrangement that followed the letter was that the father was merely agreeing to pay a bounty to the mother.
It is to clear that when one party has a legal or existing duty to perform certain obligation, there is no consideration. However, if he/she has done something extra which he / she is not obliged to do so under his/her obligation upon request by another party, then there is a constitutes consideration and is enforceable in law.
In the conclusion, there have many contract from different people, contract there have a position but beside the contract there have to do extra work. I learn many different cases such as: Thomas v Thomas (1842) 114 ER 330, QB , Re McArdle (1951) 1 All ER 905, CA, Collins v Godefroy (1831) 109 ER 1040, KB, Lampleigh v Braithwait (1615) 80 ER 255Ward v Byham (1956) 2 All ER 318, CA, Combe v Combe (1951) 1 All ER 767, CA from different places and years.
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