El cómo del aprendizaje musical: estrategias de aprendizaje y

The traditional requirement of consideration is still alive, as can be seen by some recent cases. Some doubt was placed over it by the rise of promissory estoppel – interesting itself, since it is based on a series of obiter dicta, which, of course are not technically binding – and a further blow was dealt by the case of Williams v Roffey. This case, however, does not so much challenge the doctrine’s existence, just the way in which it is measured or found. It is certainly true that in previous case law there is some inconsistency – compare Ward v Byham with White v Bluett. Are they not both too vague to provide consideration if the court is really looking for something recognisable? Yet one contract was valid, the other not.

There are other anomalies, and the doctrine has had a fair amount of criticism over the years. As far back as Couldery v Bartrum (1881) Jessel MR said:

According to English Common Law a creditor may accept anything in satisfaction of his debt except a less amount of money. He might take a horse, or a canary or a tom-tit if he chose, and that was accord and satisfaction; but by a most extraordinary peculiarity of the English Common Law, he could not take 19s 6d in the pound; that was nudum pactum.

Professor Atiyah would agree, suggesting that if we have offer and acceptance, and providing legal intent is present, there is no need for strict consideration. However, others, like Professor Hamson, would say, just as forcefully, that the doctrine is, along with offer and acceptance, part of an

‘indivisible trinity’ of contract. Perhaps the courts are now acknowledging that consideration is needed, if by that we mean a two-sided bargain, but perhaps adding on to that argument the kind of commercial realism found in Williams v Roffey. We await further developments.

Summary

Definition

• Currie v Misa: ‘A valuable consideration may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.’

• Dunlop v Selfridge: ‘An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought.’

Sufficiency and adequacy

Consideration must be sufficient but need not be adequate – Thomas v Thomas (£1 per year ground rent), Chapple v NestlÎ_ (chocolate wrappers), Bainbridge v Firmstone (weighing boilers).

Other ‘rules’ of consideration

• Consideration must not be vague – White v Bluett.

• Consideration must move from the promisee – Tweddle v Atkinson.

• Consideration must not be past – Roscorla v Thomas, Re McArdle, but may be valid if it is expected that payment would be made – Lampleigh v Braithwait, Re Casey’s Patents.

• Forbearance to sue may amount to consideration – Haigh v Brooks.

• Consideration must not be illegal – Foster v Driscoll.

Performance of an existing duty A duty owed under the general law

• An existing duty is not generally valid consideration – Collins v Godefroy.

• Doing more than the existing duty may be valid consideration – Glasbrook v Glamorgan.

• Very little ‘extra’ is needed – Ward v Byham.

A duty owed under a contract

• Where an existing duty is owed under a contract, performing the task which is already the subject of a contract cannot normally form consideration – Stilk v Myrick.

• Adding something extra, with the agreement of the other party, may amount to valid consideration – Hartley v Ponsonby.

• Sometimes, however, the court may modify the rules to reflect practice in a modern society – Williams v Roffey.

Part-payment of a debt

• Paying part of a debt is not normally good consideration – Pinnel’s Case, confirmed in Foakes v Beer.

• However, some exceptions exist.

Questions

1 Alan and Beth decide to extend and redecorate their house, to improve the accommodation which elderly Aunt Carrie occupies, and to provide space for the family’s hobbies. Pleased with the result, they hold a small party. Aunt Carrie’s accountant, David, is impressed with the work on the house, and offers to pay £1000 towards it, in order to help support Aunt Carrie. Alan and Beth thank David, and look forward to receiving the money.Two weeks after the party it has not arrived. Edmund, a wealthy local businessman, who has loaned Alan and Beth £500 towards the cost of the improvements, is also impressed with the work and tells the couple that they need not repay the loan. They thank him, saying that they will now be able to go for a short holiday, and take Aunt Carrie with them. However, on return from their holiday, they find a letter informing them that Edmund requests the payment of £500 after all.

Advise Alan and Beth concerning the money from David and the loan from Edmund.

OCR 2001/2 specimen

2 Jake is developing a leisure centre in time for the summer holiday trade and he contracts with Kanbild to undertake the installation of a swimming-pool. Kanbild contracts with Mariner to supply pipes to build the pool. Kanbild begins work in January, but in May he informs Jake that he will not be able to complete the work because of the steep increase in the cost of materials. Jake agrees to pay £2000 more than was originally agreed, so that Kanbild can obtain the materials needed and complete the pool on time.When the work is finished Jake refuses to pay the extra £2000. Six months after Mariner supplied the pipes, he has still not been paid by Kanbild. Both Kanbild and Mariner are now requesting payment from Jake.

Advise Jake whether he must pay Kanbild the extra £2000 and Mariner for the pipes.

OCR 2000

3 Evaluate the ‘rules’ which the courts might take into account when deciding whether consideration is sufficient to form a binding contract.

4 ‘The language of benefit and detriment is, and I believe long has been, out of date. So is the idea that consideration must be an economic benefit of some kind. All that is necessary is that the defendant should, expressly or impliedly, ask for something in return for his promise ……’ (J. C. Smith in The Law of Contract quoted in ‘Alive or Dead’, The Law Teacher, 13).

Explain and comment on the doctrine of consideration in the light of the above statement.

WJEB 2001/02 specimen

5 Critically consider whether there are any circumstances in which the payment of part of a debt may be considered to have satisfied the whole debt.

6 To what extent may an act which has already taken place form the basis of valid consideration?

7 Consider the circumstances in which the performance of an existing duty may form valid consideration.

OCR 2002

8 The principles of consideration have developed through a need for justice in individual cases. It is time that they were reviewed in the context of a modern society. Discuss this view of the way in which the ‘rules’ of consideration have developed.

OCR 2003 A further ‘dilemma’ style question on consideration can be found in Part 7 of the book.