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Published: Fri, 02 Feb 2018
Performance of Existing duty
What is performance of existing duty? Its means that makes a promise to another person in order to exchange for the other’s promise or performance of something that the other person is already obligated to do. Can the performance of existing duty amount to consideration; and how much does it will amount to consideration? Therefore, in initially we should understand what is consideration is about. Consideration is a benefit to a promisor but it is a disadvantage to the promise or maybe for both. In the case Currie v Misa (1975) ,it was stated that ” consideration existed when there was some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other one.” Both parties must agree for a contract. For example, you cut my hair and I give you RM5 for the cutting service. I give you my car and you give me RM1000. Existing duty is that a promisee is already bound to perform an existing legal duty.
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What is consideration means by? The words “consideration” are used in the law of contract in a technical way. “Consideration does not carry its common meanings of kindness and thoughtfulness to others. Indeed, such features are not recognized by the law, since they are not “valuable”. For example, the word is used in the following sense: “Will you do this thing for me?” Answer: “Only for a consideration”. In other words, I will not do it for nothing, but only in return for what you give me. Besides that, the consideration must be in the situation of sufficient and it is no need to be adequate as long as both parties be in agreement, in the case of Chapell v Nestle (1959) 2 All ER 701, HL shows that the things that returned by Nestle to Chappell although are small in value, but those still can be a good consideration. A consideration must be something of value, something you wouldn’t ordinarily have but for the agreement, it may consist of an action such as the handing over of goods in a retail shop, or the money for them; or else it may be consists of a promise. For instance, if someone buying something and pay immediacy without delay that is called executed consideration. It was because an executed consideration consists of a completed action. Moreover, the other type of consideration is an executory consideration. It is executory when one promise is made in return for another. For example, a promise in return for a promise; when X agree to sell Y a car and Y promises to pay RM2, 000 for it. A consideration is executed when a promise is made in return for the performance of an act. For example, X offers RM 100 to anyone who finds and returns his camera which he has earlier lost. But Y had finds and returns the camera in response to the offer. Y’s consideration for X’s promise is executed, and only X’s liability remains outstanding. The last consideration is the past consideration; a past consideration consists of something that had happened. A subsequent promise to pay for its unenforceable. A past consideration is a good consideration; it is because after the performance for a duty, the past consideration can be appeal in the Malaysia courts. For example, when A promise B to give B a goods but at the end, B din get anything from A. Therefore B can sued A that A do not fulfill his or her promise. This can be happen in Malaysian Law, act prior to the promise would be sufficient to constitute consideration even though it is clearly past.
Performance of existing duty for domestic or social
In the case Thomas V Thomas (1842) 114 ER 330, a testator, shortly before his death, had expressed the wish that his widow should have the use of his house during her lifetime as long as she did not remarry. His executor agreed to allow her to occupy the house in return for her promises to pay 1 pound per year and to keep the premises in good condition. The executor as a defendant subsequently refused to allow her to have the house. Since the widow paid rent, so there is something is value and kept the premises in good condition, therefore the contract is enforceable.
In the case of Balfour V Balfour (1919) 2 KB 571, CA. The parties were married in 1900 and went to Ceylon where the husband had a government post. In 1915, the couple returned to England for holiday and the husband return to Ceylon at 1916 but the wife is still stay at England because of on medical grounds. Before thee husband left he made an oral promises to his wife to pay her 30 pound per month. The parties subsequently separated and eventually divorced. The wife sued the husband for breach of contract for arrears due under the agreement. The judgment was given for he husband that no money to be paid. It was because there was no legal contract as the parties as husband and wife did not intend legal consequences to their arrangement.
Performance of existing duty for commercial and public
Base on the traditional perception, performance of an existing duty should be constitute a consideration in this case Stilk v Myrick (1809) 170 ER 1168, KB. From the case itself, there is 11 seamen on the ship but 2 of the seamen were deserted their ship during their voyage. Therefore, the duties of those 2 seamen have to find theirs replacement to replace their jobs. Since its hard to find replacement for the 2 deserted seamen, as a result the captain offer the rest of the ship’ seamen share the wages of the 2 deserted seamen equally as it was safety back to London. At last they already safety ship back to London but the 9 seamen was get nothing. Because the captain did not fulfill his promise as what his mention on the ship. Therefore the 9 seamen feel unsatisfied that what captain had threat them, so they sue the captain. But the court judgment stated that the 9 seamen is based on the work of existing obligations, shipped back to London, and promised to take all emergency needs. Therefore, captain need not provide additional funding commitments, any consideration. Therefore he is entitled to nothing. Therefore the captain could not be sued.
Base on the orthodox view, performance of an existing duty should be constitute a consideration in the case of Hartley v Ponsonby (1857)119 ER 1471, QB. A ship of 36 seamen was out from England. On the ship, there are 19 of the seamen was deserted including 5 able seamen. It is interest that compare with the last case Stilk v Myrick 1809. In both cases, the captain also offers the same thing to the rest of the seamen; captain do promise will pay more wages if they would sail the ship home. Finally they safety reach London, and he promise that will pay the extra wages to those who had help them back. But at the last, the captain doesn’t what to pay. In both cases, the captain also did not pay and the seamen also want to sued the captain. But this time is a bit different ,because big amount of people was defected ;therefore the workload for the rest 17 people have to take place for that 19 people as well. So, the 17 seamen is working under a dangerous situation, it is already over for them. Therefore, the captain’s promise should be constitute as a consideration compare with the 1st cases. The court said this promise was enforceable, so the captain is lost.
In my opinion, I will prefer to agree that performance of an existing duty can constitute consideration.
Consideration is an essential feature of each simple contract. Consideration consists of the element of exchange between the parties to the contractual agreement, and maybe described as “the price of a promise”. Beside that, consideration maybe executor or executed. “Executory” means in promissory form, something to be done in the future. Executed consideration consists of a completed action. To be valid, consideration must have some value in the eyes of the law. it may consists of actions, or form of property. Where a person is under an existing contractual duty or a public duty to perform some act, such performance cannot be the consideration for a contractual promise.
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