There be performed and was assumed to

There are two types of consideration, which are executory consideration and executed consideration. An executory consideration is an agreement to carry out an act for the future, where as an executed consideration is where one party has already carried out their side of the bargain.2 One of the main cases that well-defined consideration is the case of Currie v Misa, 18753, which states that “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.”One of the rules in English law is that ‘past consideration is no consideration’.4 This is a sensible rule as it can stop people from being forced into contracts on the foundation of giving goods or services which they have not ordered.5 Some argue that if it can be said that the promise to pay ‘relates back’ to a request made previously by the promisor for the act to be performed and was assumed to be paid for throughout the negotiations, then this act is an executed consideration and will not be regarded past consideration.6 For example in the case Lampleigh v Brathwaite, 16157, the defendant had murdered a man and received a severe punishment, which was to be hung for the murder. He asked the claimant to do everything in his power to get forgiveness from the king, which he managed to do. The defendant then promised to pay him a fee of £100 for all the efforts he had been through in order to get his request pardoned, however he did not pay the fee. It was held that whilst the promise to make the payment came after the performance, it was still regarded as past consideration. Nonetheless, the consideration was continued by a wish from the defendant which meant that the consideration was valid. The defendant was then made to pay the claimant the promised fee of £100. This case shows that even though the request of the promise was made before the consideration and not after, the sum of money was still needed to be paid as the promise to pay in advance was implied, which in turn made the contract binding. This therefore suggests that the courts need consideration in order to make contracts fair and even. Without consideration, the court may would have decided that the fee would not need to be paid, even though there was a promise to do so.Another rule in the English law of consideration is that consideration must move from the promisee. In this rule, the person who wishes to enforce a contract needs to show that they have provided consideration. This is because someone else cannot show that they have provided consideration. An example being that, if the promise was provided by the promisor, then the promisee must show that the consideration moved from them. In addition, consideration does not have to move to the promisor if there are third parties involved. When there are more than two parties involved in a contract, this can make the notion of consideration convoluted. For example in the case Price v Easton, 1833, the defendant had agreed with a second party that if that party had carried out the stated work he would pay a promised fee to the claimant which is a third party to the contract. However even though the work was accomplished, the defendant failed to stick to the promise and pay the fee. The complications that had arisen in this case was that there was another party involved with the contract. Thus this meant that they could not sue for the sum of the money owed by the defendant. It was held by the court that on the basis that as the claimant had not provided any consideration for the promise between the parties, the case was dismissed by the courts.It could be argued that the notion of consideration has now become so convoluted that it has no relevance or meaning in the English law of contract, due to the fact that in the English law of contract, it does not matter whether the value of consideration accurately matches the value of the item being offered; the contract will only fail if nothing of value is offered. In addition to the statement made, it can be further argued that consideration is convoluted due to the fact that the English law enforces bargains and not gratuitous promises. In other words, this means that in order to enforce someone’s promise, it is vital to prove that one gave something in return for that promise. A gratuitous promise is not supported by consideration, for example if one offered to give something without asking for something in return, then the gratuitous promise will not be enforceable in law.Over the years, courts have come to a decision that an agreement needs to have certain elements in place in order to be considered as a contract. Nevertheless, even if all elements are in place, courts have often ruled contracts as invalid, because they were completed under duress or on the root of in accurate information. This suggests consideration has become convoluted as it suggest courts may still deem a contract as invalid even if all elements are provided. However it can also suggest that consideration has not lost meaning or relevance as courts still require consideration in order to make a contract lawful. Without consideration, there is no contract.Even though consideration is seen to be required in the English law of contract, it may not need to be adequate; however it must be sufficient, such as the case Thomas v Thomas, 1842. In this case, Mr Thomas had passed away, but before he died he wished for his wife to have the house they lived in for the rest of her lifetime as long as she paid a peppercorn in rent of £1 per year. Despite the fact the amount of money involved was uneven to the benefit gained, the agreement was still noted as good consideration. Similarly in the case Ward v Byham, 1956 a promise to keep a child happy was held as good consideration, however this was different from the case White v Bluett, 1853 which held the view that a promise made by a father to his son if he stopped complaining was not enforceable as the son had not provided sufficient consideration.Many people will argue that consideration should be regarded as a necessary element in a legal contract due to the fact that consideration protects the person who has been promised. For example in the case Williams v Roffey Bros, 1990, the Roffey brothers entered into a contract to redecorate a block of flats for an agreed price. In addition, they sub-contracted carpentry work to Williams. However due to financial difficulties, Williams was not able to finish the work in time. Thus this would mean a breach of contract, gaining a penalty. The Roffey brothers later refused to pay the additional money for the completed flats, so Williams finished the work and sued the Roffey brothers for the extra money for the flats he had accomplished after the promise of additional payment was made. The issue for the Court of Appeal was figuring out whether there had been consideration for the promise of the additional payments, on the basis that the subcontractor already owed a duty to the contractor to finish the flats. The Court of Appeal held that there was a contract and as consideration was given, the Roffey brothers were protected and gained many benefits. As well as not having to pay the penalty, the benefits they received form the contract include, having the work completed on time, not having to spend money and not needing to find another carpenter.In contrast to the point made above, others may argue that consideration is not a necessary element, as the doctrine of promissory estoppel can replace it. The case Foakes v Beer, 1884, contrasts with the Court of Appeal in the Williams v Roffey Brothers case. In this case Foakes owed Beer a sum of money from a decision made by the House of Lords. Beer agreed that she would not take any action against Foakes for the amount owed if he would sign a contract promising to pay a part payment until the full amount was paid, including not suing as the balance was not considered sufficient and fresh consideration would be required. However the result of this would be a disagreement in the treatment of different alteration promises, since an alteration promise to pay more may be maintained by consideration, whereas factual benefit cannot serve as the consideration to support an alteration promise to take less. If an alteration promise is not supported by consideration, then that promise may have an effect on the doctrine of promissory estoppel. Sometimes the equitable doctrine of promissory estoppel can be used to impose an agreement that might fail otherwise due to lack of consideration. The difficulty with primary estoppel in English law is that it only functions as a defence and cannot create a cause of action. The doctrine was initially developed in the case of Hughes v Metropolitan Railway, 1877, where the landlord gave a tenant six months’ notice to carry out maintenance and if they failed to do so it would result in a penalty of the lease. The landlord and tenant then entered into negotiations for the tenant to buy the property. It was thought by both parties that a transportation of the property would take place. Thus, the tenant did not carry out the maintenance as they believed they would be buying the property and the repairs asked by the landlord were not necessary to his use of the property. However at the end, negotiations broke down and the landlord gave the tenant notice to quit for failing to carry out maintenance. The House of Lords held that the conduct of Hughes had led the Metropolitan Railway Company to believe that Hughes had postponed his legal rights under the lease whilst discussions had been ongoing. Therefore it would be inequitable to permit the time to run against the railway company during this period. As a result the repairs were finished months after the initial agreement and the House of Lords deemed this acceptable.A significant problem with the doctrine of promissory estoppel replacing consideration is the rule that it can only be used ‘as a shield and not a sword’. Promissory estoppel cannot form the basis of a cause of action as it is only available as a defence. This problem could be resolved if United Kingdon take the approach used in Australia, where in the case of Waltons Stores (Interstate) Ltd v Maher 1988, the High Court of Australia confirmed that estoppel can be used as a cause of action. In doing so the court has implied that promissory estoppel has a role to play with the formation of contracts, not just their alteration, and could thus be a replacement for consideration. However Brennan J stated that even if you do allow promissory estoppel as a cause of action it will still be performed as a different function to consideration, since consideration protected the expectation and interests of contracts, whereas promissory estoppel is only concerned with the reliance interest. Furthermore due to a lack of unified doctrine of estoppel in the English jurisdiction, it is not likely for promissory estoppel to be a possible alternative to consideration in its own right.One reason as to why consideration should be regarded as necessary in the English law of contract is due to the fact that it provides evidence, for example the case Balfour v Balfour, 1991. In this case, Mr and Mrs Balfour were married and Mr Balfour was a civil employee who had to leave for Ceylon as he had been employed there, but his wife could not go due to medical reasons. Mr Balfour promised to pay his wife £30 per month until he was able to join her. However due to certain circumstances Mr and Mrs Balfour got divorced and Mrs Balfour filed a case against Mr Balfour for the money he had promised to pay but failed to do so. The court held in this case that there was no enforceable agreement as there was not sufficient evidence to propose that it was aiming to be legally bound by the promise. In addition, in this case there is a rebuttable presumption against an intention to create a legally enforceable agreement. This case proves the point that consideration should be regarded as necessary and if it was not needed in the English law of contract then courts may grant unfair consequences, such as making sure that Mr Balfour pays Mrs Balfour the money promised without evidence suggesting otherwise.In conclusion, even though there are arguments that suggest that the notion consideration has become so convoluted, due to the fact that it could be replaced by rules such as the doctrine of promissory estoppel, consideration is still an essential element of contract law and it should not be regarded as unnecessary. The notion of consideration plays an important role for the enforcements of contracts, therefore if it does not exist, then the enforceability of contracts in the eyes of law would not be possible. In other words, this will generally mean that neither one party can sue the other if there is a dispute over contract terms. This is due to the fact that a contract is not valid from the beginning if there is no consideration exchanged. Thus, it is important for both parties to be made aware of consideration in a contract especially at the beginning of making the contract.

Go Top
x

Hi!
I'm Eleanor!

Would you like to get a custom essay? How about receiving a customized one?

Check it out