1.

Consideration must be sufficient but need
Consideration
Asif Tufal
Each side must give consideration in order
to make a contract binding.
Consideration is defined in Currie v Misa
(1875) as some right or benefit for one party
and some loss or responsibility for the
other. There are two types:
Executory consideration is a promise for a
promise; and
Executed consideration is an act in return
for a promise.
However, in Ward v Byham (1956), the
not be adequate
Sufficiency means it must be real and have
some value. Compare:
White v Bluett (1853) where a son owed his
father money and had given him a
promissory note. The father died and his
executors sued for the money. The son
claimed that his father had promised to
write off the debt if he stopped complaining
about the way his father was handing out
his assets, which he had done. There was
no consideration, as he had no legal right to
complain.
2. Consideration must move from the
promisee
This means that a person cannot sue or be
sued under a contract unless they have
provided consideration for it. An example is:
Adequacy means that the value of
parties were the parents of an illegitimate consideration does not have to be equal.
daughter. The child lived with the father at This is shown in cases such as:
first, but the mother asked for the child to
live with her. The father agreed in a letter
also stating that he would pay up to £1 per
week allowance for her providing the
mother kept her well looked after and
happy. The father eventually stopped
making the payments. As there was no legal
obligation to keep the child happy, the court
considered this to be consideration.
Thomas v Thomas (1842) where a man
stated that his wife should be allowed to
remain in the house after he died. This wish
was not in his will. The executors carried out
this wish and charged the widow a nominal
rent of £1 per year. When they later tried to
evict her, they failed because consideration
was provided by the £1 per year rent.
3. Past consideration is no consideration Another example is Re McArdle (1951):
If one party voluntarily performs an act, and
the other party then makes a promise, the
consideration for the promise is said to be in
the past. The rule is that past consideration
is not valid consideration, so cannot be used
to sue on a contract. For example:

In Chappell v Nestle Co. Ltd (1960), Nestle’s
customers were able to claim a recording of
a song at a fraction of the normal cost if
they sent in some Nestle chocolate bar
wrappers. The total consideration was the
payment and the chocolate bar wrappers.
The House of Lords stated that even if the
contract had been to supply the record
merely for the wrappers alone, they would
have been consideration, even though they
were of only nominal value.
Tweddle v Atkinson (1861), where both
fathers of an engaged couple agreed in
writing to each give them money after
marriage. The woman’s father died. The
husband then sued the executors of the
estate when they refused to pay £200. Even
though the husband was named in the
agreement, his claim failed because he had
given no consideration (and was not a party
to the agreement himself).
In Roscorla v Thomas (1842), T sold a horse
to R for £30. T later stated that it was “free
from vice”. In fact, the horse was violent so
R sued for breach of contract. There was no
consideration for the later promise. The
only consideration of £30 was in the past.
McArdle left a house to his five sons in equal
shares. His widow, one son and daughter-
in-law (C) lived in the house. C paid £488 for
improvements to the house. She got all five
sons to sign a document promising to repay
her. After the widow died, C asked for
payment but the other four sons refused.
As the promise to make payment came after
the work had been done, it was past
consideration and not binding.
There are two exceptions to this rule …
(a) If the promisor has previously asked the
other party to provide goods or services,
then a promise made after they are
provided will be treated as binding. For
example, Lampleigh v Braithwait (1615):
B killed someone and then asked L to get
him a royal pardon. L got the pardon and
gave it to B, who promised to pay L £100 for
his trouble. B refused to pay. Although L’s
consideration was past (he had got the
pardon) B’s promise to pay could be linked
to his earlier request and treated as one
agreement, so it could be implied at the
time of the request that L would be paid.
If the performance of an existing contractual
duty confers a practical benefit on the other
party this can constitute valid consideration,
according to:
Williams v Roffey Bros Ltd (1990) where RB
was refurbishing flats under a contract with
a penalty clause for late work. RB
subcontracted carpentry work to W for £20k
who had underquoted on the work and then
faced financial difficulties. In order to avoid
paying a penalty, RB agreed to pay an extra
£10,300. RB then refused to pay but the
promise was enforceable.
(b) If something is done in a business
context and it is clearly understood by both
sides that it will be paid for, then past
consideration will be valid. For example, Re
Casey’s Patents (1892):
A & B owned a patent and C was the
manager who had worked on it for two
years. A & B then promised C a one-third
share in the invention for his help in
developing it. It was held that C could rely
on the agreement. The subsequent promise
to pay merely fixed the amount.
(b) If someone is under a public duty to do a
particular task, then agreeing to do that task
is not sufficient consideration for a contract.
Compare:
Collins v Godefroy (1831) where G promised
to pay C if he would attend court and give
evidence for G as an expert witness. C had
been served with a subpoena (ie, a court
order telling him to attend) but was not
called for the six days of the trial. C
demanded payment. As C was under a legal
duty to attend court he had not provided
consideration. His action therefore failed.
4. Performing an existing duty cannot be the
consideration for a new contract
(a) If someone promises to do something
they are already bound to do under a
contract, then that is not valid
consideration. Compare:
Stilk v Myrick (1809), where two out of
eleven sailors deserted a ship. The captain
promised to pay the remaining crew extra
money if they sailed the ship back, but later
refused to pay. It was held that as the
sailors were already bound by their contract
to sail back and to meet such emergencies
of the voyage, promising to sail back was
not valid consideration.
However, if someone exceeds their public
duty, then this may be valid consideration as
in Glassbrook Bros v Glamorgan Council
(1925):
During a workers’ strike, a mine-owner
asked for extra protection by having 70
policemen on site rather than a mobile
patrol. He agreed to extra payment but
then refused to pay, arguing that the police
were bound to protect his mine. As the
police had provided more men and in a
different way than they would normally
have done, there was consideration for the
promise.
However, if someone exceeds their existing
contractual duty then this may be valid
consideration:
In Hartley v Ponsonby (1857), when
nineteen out of thirty-six crew of a ship
deserted, the ship was so seriously
undermanned that the rest of the journey
had become extremely hazardous. Sailing
the ship back in such dangerous conditions
was over and above their normal duties. It
discharged the sailors from their existing
contract. They were therefore entitled to
the money promised by the captain.
(c) If a party promises to do something for a
second party, but is already bound by a
contract to do this for a third party, this is
good consideration. See:
Shadwell v Shadwell (1840) an uncle
promised to pay his nephew £150 pa if he
married his fiancé (a marriage contract was
legally enforceable at the time). The uncle
paid 12 instalments but then died. His
executors refused to pay. It was held that
performance of the marriage contract was
consideration even though it was made with
a third party to the agreement between
uncle and nephew.