Consideration in English Law - Pre-existing Duties

Pre-existing Duties

If the promisee provides what he was required by public law to do in any event in return for a promise, promised performance of existing duty is not good consideration. In Collins v Godefrey Godefrey promised to pay Collins for his giving of evidence. It was held that Collins could not enforce the promise as he was under a statutory duty to give evidence in any event.

However, if the promisee provides more than what public duty imposes on him, then this is good consideration. In Ward v Byham a mother was under a statutory duty to look after her child. The ex-husband promised to pay her £1 a week if she ensured that the child was well looked after and happy. It was held that notwithstanding the statutory duty imposed on the mother, she could enforce the promise since the act of keeping the baby 'happy' provided additional consideration.

• Glasbrook Ltd v Glamorgan County Council AC 270

Promising to perform a pre-existing duty owed to one's contracting party also fails to make good consideration. However this rule has been considerably narrowed by recent case law. The general rule is that if a creditor promises to discharge a debt in return for a fraction of payment, in paying the agreed fraction, the promisee is not providing consideration for the promise, as this is merely part performance of a contractual duty already owed. Consequently, the debtor is still liable for the whole amount, as he cannot force the promisor to accept less. A leading example is in Stilk v Myrick. Stilk, a seaman, agreed with Myrick to sail his boat to the Baltic Sea and back for £5 per month. During the voyage, two men deserted. Myrick promised he would increase Stilk's wages if Stilk agreed to honour his contract in light of the desertions. Stilk agreed and on return to port, Myrick refused to pay him the extra wages. It was held that Myrick's fresh promise was not enforceable as the consideration Stilk had provided for it, the performance of a duty he already owed to Myrick under contract, was not good consideration for Myrick's promise to increase his wages.

Initially, there were only two exceptions to this rule:

• Hanson v Royden, the promisee has done, or has promised to do, more than he was obliged to do under his contract.
• Hartley v Ponsonby before the fresh promise was made, circumstances had arisen which would have entitled the promisee to refuse to carry out his obligations under his contract.