Consideration Flashcards
What is a ‘nudum pactum’?
A ‘bare promise’ will not be enforced by the courts; consideration must be given
What is the concept and purpose of ‘Consideration’?
the concept of consideration is built into contract law which transforms a promise into a binding contract.
Consideration
Give Ewan McKendrick’s definition
Ewan McKendrick defines Consideration as “something moving from the promisee, usually to his detriment, to the promisor, usually to his benefit, which changes a promise into a binding contract
Rules on Consideration
Give the The three rules
Consideration must be sufficient but need not be ‘adequate’.
Past consideration is no consideration at all.
Consideration must move from the promisee.
Rules on Consideration
Give case law for the three rules
Sufficient but not adequate:
Thomas v Thomas (1842)
Chappell & Co v Nestle & Co (1959)
Past Consideration:
Re: McArdle (1951)
Exception - Lampleigh v Braithwait (1650)
Consideration must move from the promisee:
Tweddle v Atkinson (1861)
What can count as Consideration?
Anything can count as consideration so long as the promisor accepts it. Lord Mansfield: “a hawk; a robe; a tom-tit can be good consideration if both parties agree”
Exceptions for ‘good’ Consideration
What are The Three(ish) Exceptions?
1a - Doing public duty such as giving evidence at a trial;
1b - Unless the promisor goes beyond their duty.
2 - Part payment of a debt.
3 - Pre-existing contractual duty.
Exceptions for ‘good’ Consideration
Case law supporting The Three(ish) Exceptions
Public duty:
Collins v Godefroy (1831)
Unless the promisor goes beyond their duty:
Glasbrook Bros v Glamorgan County Council [1925]
Part payment of a debt:
“the rule in Pinnel’s case” (1602)
Foakes v Beer (1883-84)
Pre-existing contractual duty
Stilk v Myrrick (1809)
Williams v Roffey Bros (1990)
Give Glidewell LJ decision in the case
Court of Appeal decision by Glidewell LJ claimed that when Williams completed on time, Roffey Bros “avoided a disbenefit” namely the triggering of the penalty clause. This, he claimed, was the same as gaining a benefit and hence it was good consideration.
On the conflict with Stilk v Myrrick (1809) he claimed that the court was not overturning the rule but “refining and modernising” the rule.
Developments following Williams v Roffey Bros (1990)
Give the reactions
The case is very controversial.
Peter Gibson LJ set aside the decision in the Roffey case when considering Re: Selectmove Ltd (1993) in preference for the long-held line of reasoning in Foakes v Beer (1883-84)
