Recently my lecturer asking us to do an assignment in this title: Is it correct to say that performance of an existing duty will never amount to good consideration? But I fel very confused of it...anyone can teach?
Greetings!
It is true that the general rule is that if one already has an existing legal duty to do something, performance of that pre-existing duty, or a promise to perform it, cannot amount to good consideration.
As with practically all rules of law, however, there are exceptions to the existing duty rule. One is unforeseen difficulties. This often arises with construction contracts. Let's say a contractor enters into a contract to build a house, but after he begins work, he discovers that instead of ordinary soil on the site, the ground underneath is solid granite. This will greatly increase the contractor's costs, so he tells the property owner he needs to be paid twice as much and the owner agrees. This oral contract would not be enforceable if the contractor was just building the house as he had already agreed to in the original contract. However, because of the unforeseen difficulties involved with building on granite, the owner's promise to pay more is enforceable in court; that is, if the owner tries to avoid paying the extra amount, and the contractor sues him, the court will enforce that promise to pay more, even though there was no additional consideration by the contractor. A second exception is rescission. If the contractor has not yet performed his part of the bargain (i.e., the contract is "executory" rather than "executed"), the two parties can agree to rescind their original contract and make a new contract. The pre-existing duty is then discharged by the rescission of the old contract, and a new duty is created in the new contract.
I hope this helps!
Thanks,
Sarah, EssayForum.com
I would like to ask if using this topic and write in Argumentative format and must refer to some actual case studies where is the best place to get those materials?And support which site is better?Thanks for ur help...
And how to start to write for the introduction?Is it defined what is "Consideration"?
Thomas v Thomas (1842)
netk.net.au/Contract/Thomas.asp
Question: If this is a case study which is not amount to good consideration...May I know how 2 apply in essay writing?Can giv me a brief example?Thank u...
Greetings!
There are many places on the web you can find case law. I am not as familiar with British case law, but I am sure your school's library has databases which would contain this information. Try searching there, and ask the librarian if you need help finding it.
Usually, in analyzing cases, one follows a specific formula: Issue, Rule, Application, Conclusion (the names for these may vary slightly). The issue is "whether performance of an existing duty can amount to good consideration." The rule, I gave you above: "if one already has an existing legal duty to do something, performance of that pre-existing duty, or a promise to perform it, cannot amount to good consideration." You should also mention the exceptions to the rule. Application means applying the rule to the facts at hand. Did your instructor give you a fact situation? Or were you just supposed to find out the rule? If you have facts to use, do it like I did with the contractor who discovers he must build on granite; apply the rule to the facts. Your conclusion will answer the issue by stating what should happen in this particular case/fact situation.
I hope this will help!
Thanks,
Sarah, EssayForum.com
he didn't give any act situation...just ask us pick some cases to support the site that we wan to stand for...and then write in argumentative essay form...
Hi Ms Sarah...Can I write it in this way?
Contract will be an agreement between two or more parties that is legally enforceable. Contract can be written or unwritten which will depends among the parties. The classification of contract law includes offer, acceptance, intention, consideration and capacity. Offer and acceptance are link with each other. An offer is an invitation to treat; it must be a clear, unequivocal and direct approach to another party to contract. Where else on acceptance will be a binding contract as to accept the offer. Next, the intention to create a legal relation. Follow by "consideration as a detriment to the promise and/ or a benefit to the promisor" (Poole.J, 1992). Consideration is not necessarily to be quantified or quantifiable in monetary terms. Duhaime Organisation (2007: 1) stated that the party's consideration can be of any noticeable detriment to one of the parties. Lastly, capacity considerate the mental and age of a person before an enforceable contract can be made.
The principles of consideration to English contract law. A promise that requires being bind together, something must be fulfilled or giving in exchange by the promise. There should not be a good consideration for the performance of an existing duty. For example Adam's daughter, Marine was studying for medical courses. Marine is a regular smoker since she was at the aged of 20. Her father was worried of her health condition since she was still young to have sickness. In order to stop her from smoking, her father promised to pay her RM250 if she can stop smoking until she had completed her course which will be completed another 1 and half year. He also promised to buy her a car if she can graduate on time. This might cast doubt on the validity of both the abstention from smoking and to graduate on time. Marine should respect her father's without offence his father. Parent cares for their children as they will think of thousand ways to rectify their children for the children's' good. Although his father did not pay or buy her a car after Marine had accomplish her promised to her father, she cannot sue her father for the breach of promise. This applied very strictly of the requirement that indicated monetary value. In the case of White v Bluett (1853) it was held that Bluett would stop complaining about the father not to enforce a promissory note that this father had lent him which provided no consideration. It is because the son had no right to stop his father from distributing his own property among his own children. This requirement of consideration may sometimes involve of some monetary value. The condition of monetary value can also be outshined by the law of consideration may not provide a benefit to the promisor if it is a detriment to the promisee. Marine could say that her detriment is brought toward her because of promising her father. Here again, nevertheless, she can argued that she could give up smoking, and graduate on time in fact both to her benefit.
Performance of an existing duty will amount to a good consideration. Another case that can be related to the example is the case of Chappell v Nestlé (1960). In my opinion, the wrappers are not part of the selling price. The wrappers are just an exchange for getting the smash hit recording from Nestlé's 6d. Milk chocolate bars, together with postal order for 1s. 6d. The purchaser of the record, has not bought from Nestlé but from one of the retail shop at town three bars of chocolate and that the purchaser has therefore obtained the wrappers either directly or indirectly. The only things that is sure is that, if he buys few bars of chocolate from a retail shop or asks the wrappers from the others who bought the chocolate, that purchase is not a necessarily same part of the transaction as his consequent purchase of a record from the manufacturers. For that reason, there was a benefit to Nestlé through increased of chocolate sales by requiring the wrappers. As a promise from sending three wrappers will able to redeem a record. Thus, Marine and her father will both be beneficial to each party that Marine will not suffer for sickness in future if she gives up smoking and her father will be release to have a healthy daughter.
Greetings!
You have some good information in your essay. There are a few places that could be a little clearer. For example:
This might cast doubt on the validity of both the abstention from smoking and to graduate on time. [Cast doubt in what way or to whom? What do you mean?] Marine should respect her father's without offence his father. [This looks like a typo...?] Parent cares for their children as they will think of thousand ways to rectify their children for the children's' good. [This is a bit of editorializing that really does not belong in a legal analysis.]
The condition of monetary value can also be outshined by the law of consideration may not provide a benefit to the promisor if it is a detriment to the promisee. [Besides not being grammatical, this does not sound right from a legal standpoint; you might check your sources on this.] Marine could say that her detriment is brought toward her because of promising her father. Here again, nevertheless, she can argued that she could give up smoking, and graduate on time in fact both to her benefit. [I'm not sure I really follow your logic here]
Thus, Marine and her father will both be beneficial to each party that Marine will not suffer for sickness in future if she gives up smoking and her father will be release to have a healthy daughter. [You were talking about Nestle; why did you suddenly jump back to Marine? Also, you should give the fact situation for the Nestle case; it did not really make sense to me because you did not give enough background.]
I hope this helps!
Thanks,
Sarah, EssayForum.com
Hi Ms Sarah, can u comment on this for me?
Is it correct to say that performance of an existing duty will never amount to good consideration?
Contracts are commonly governed and enforced by the laws in the circumstances where the agreement made, argues FindLaw (2008), and a business contract is one of the most common legal transactions that you will be involved in when on the trot on a business. For example, most bills of sale, purchase orders, employment agreements, and other common business transactions are legally enforceable contracts. Moreover, it also appointed that having an understanding of contract law is a key to creating sound business agreements that will be legally enforceable in the event that a dispute arises. In the eyes of the law, a contract arises when there is an offer, acceptance of that offer, and sufficient consideration to make the contact valid. Consideration is a legal term given to the bargained for exchange between the parties to the contract which is something of some value passing from one party to the other (SG&B, 2007). Consideration is essential to the validity of any contract other than one made by deed. Without consideration an agreement not made by deed is not binding; it is a naked agreement, governed by the right of action does not arise out of a naked agreement (Oxford University Press, 2006). Thus, each party to the contract will gain some benefit from the agreement, and will incur some obligation in exchange for that benefit.
Good consideration which furnish with natural love and affection or a moral duty is not enough to render a promise enforceable.
ProZ.com states:
"The doctrine of consideration is governed by four major principles which are a valuable consideration is required (i.e. the act, forbearance, or promise must have some economic value), consideration need not be adequate but it must be sufficient, consideration must move from the promise and consideration may be executed but must not be past..."
It is true that the general rule is that if one already has an existing legal duty to do something, performance of that pre-existing duty, or a promise to perform it, cannot amount to good consideration. For example, Mathew agreed to received £100 as his daily salary basis to be Paul Smith driver to travel to Highbury, London but when he drive in the half way he felt that the destination is very far to go and he intend to ask for higher wages from Paul. Paul doesn't know how to drive and agreed to pay at that time but last of all he did not pay. This situation is related to the actual case of Stilk v Myrick in 1890. According to Poole (1992), he emphasised that the judgment in the case of Stilk v Myrick is still considered stout despite the numerous attempts to find ways around it. The background of this case is a team of seven sailors agreed to crew a ship from London to the Baltic and back and there was two sailors deserted in the Baltic while the remaining nine sailors refused to sail, and pressed the captain for higher wages. The Captain agreed at the time but ultimately refused to make any payment as he promised them on the trip. The sailors attempted to sue the captain but finally lost. It was due to they didn't make any contract with the captain when they agreed to work on and it can be argued that the captain's offer was not supported by any consideration on the part of the sailors. Therefore, the sailors were only doing what they had agreed to do along and it can be viewed as a decision to make the point of public policy and they cannot force the other party to offer better terms by placing the captain economic stress. In a sense that the doctrine of consideration is governed by existing contractual duty means if someone promises to do something they are already bound to do under a contract, which is not amount to good consideration. This case should be contrasted with Hartley v Ponsonby 1857; it allowed the captain and crew to consider the original contract discharged. The offer of higher wages was thus seen as a new agreement.
There was another case to sustain that performance of an existing duty will amount to a good consideration which is Williams v Roffey Bros Ltd (1990). This highly contentious case is taken to demonstrate that the performance of an existing contractual obligation can be taken as consideration in a new agreement. It does present a benefit to the party whose duties are already fulfilled to have the other party offer to do something he has to do anyway in traditional view. Roffey at al. were a firm of builders contracted to renovate a block of flats. Their own contract contained a penalty clause for late completion, so it was in their interests to finish the work on time. Part of this work they sub-contracted to Williams. As work progressed, Williams fell behind schedule because, they claimed, they had not set an adequate price for the work. They negotiated a new deal with Roffey, which an additional sum was to be paid on the completion of each building. When the next building was complete, Roffey refused to pay. In defense, Roffey claimed that the new agreement with Williams was void, as there was no sufficient consideration from Williams. The Court considered the case of Stilk v Myrick and decided that it was robust and should stand: an agreement cannot be enforced without consideration. However, the Court held that in this case there was consideration: the new agreement conferred additional `practical benefit' on Roffey; in particular an early completion would allow them to avoid the exercise of the penalty clause. Although this case could be seen as overturning the traditional narrow view of consideration, in practice it has not been widely followed in subsequent cases.
Good consideration which furnish with natural love and affection or a moral duty is not enough to render a promise enforceable. As with practically all rules of law, however, there are exceptions to the existing duty rule. One is unforeseen difficulties. This often arises with construction contracts. For example, a contractor enters into a contract to build a house, but after he begins work, he discovers that instead of ordinary soil on the site, the ground underneath is solid granite. This will greatly increase the contractor's costs, so he tells the property owner he needs to be paid twice as much and the owner agrees. This oral contract would not be enforceable if the contractor was just building the house as he had already agreed to in the original contract. However, because of the unforeseen difficulties involved with building on granite, the owner's promise to pay more is enforceable in court; that is, if the owner tries to avoid paying the extra amount, and the contractor sues him, the court will enforce that promise to pay more, even though there was no additional consideration by the contractor. A second exception is rescission. If the contractor has not yet performed his part of the bargain (i.e., the contract is "executory" rather than "executed"), the two parties can agree to rescind their original contract and make a new contract. The pre-existing duty is then discharged by the rescission of the old contract, and a new duty is created in the new contract.
Greetings!
I think you've done a good job of answering the question. The one thing I might question is your sources. Online sites like FindLaw are not really considered authoritative sources. You would do better to rely on black-letter law from cases or treatises. Of course, your instructor may have given you instructions I'm not aware of.
Best of luck in your studies!
Thanks,
Sarah, EssayForum.com
