On the other hand in the case of Ward v Byham (1956) The mother of an illegitimate child was offered £1 a week by its father to care for the child, keeping it "well looked after and happy". She was, of course, already under a statutory duty to care for her child. The court held that she had promised to do something more than her mere statutory duty and that the father’s promise was enforceable.
This shows that the performance of an existing duty will not usually constitute good consideration. However, "extra" consideration, such as caring for the child well, rather than simply caring or providing for it, is good consideration.
Consideration is also not valid if there is an existing contractual duty, such as in the case of Stilk v Myrick (1809) whereby the Captain of a ship offered its sailors the wages of two deserters, divided between the remaining crew, if they sailed the ship home short handed. He then refused to pay this money when the ship returned to port.
It was held that the sailors were not entitled to the extra money, as they had not done any more than they were already obliged to do. This is because performance of an existing contractual obligation is not sufficient consideration.
Although in the similar case of whereby a crew of thirty-six sailors were reduced to one of nineteen following numerous desertions. Of the remaining sailors, only very few were experienced sailors. The captain offered them a bonus if they sailed the ship, thus shorthanded, back to port. This they did, but the captain then refused to pay the bonus. It was held that the crew were entitled to the bonus; they had performed duties over and above their existing duties. This shows that any "extra" consideration will be sufficient consideration.
In the case of Williams v Roffey a building company contracted some carpenter. The carpenters had run out of money and couldn’t buy raw materials for their work. The building firm agreed to pay extra money to do the job they were already contracted to do. At the end of the contract the building company didn’t pay the money. They quoted Silk v Myrick as there was no extra work done and it was an existing contractual duty. It was held that consideration was there and the building company had to pay the carpenter as the building company benefited from not having penalty charges for the missing of the deadline and the carpenter had to get money from the bank and pay interest on it. Therefore there was consideration. This is a qualification to Silk v Myrick whereby the performance of an existing contractual duty confers to a practical benefit on the other party, and subsequently can constitute a valid consideration.
There is also a clear authority that the performance, or the promise to perform, an existing contractual duty owed by the promisee to a third party is good consideration. As in the case of Scotson v Pegg (1861) A agreed to deliver coal to V, or to B’s order. B ordered A to deliver the coal to C. C promised A that if A would deliver the coal, he would unload it. In an action by A to enforce C’s promise, it was held that A’s delivery of the coal, (the performance of an existing contractual duty to a third party, B) was good consideration to enforce C’s promise
A further exception to the rule of Consideration is in the case of Hughes v Metropolitan railway (1877) whereby a landlord was entitled, under the terms of a lease, to compel a leaseholder to carry out repairs to the property, given an adequate period of notice. The landlord gave a six-month notice period but during this time the landlord and leaseholder entered into negotiations over the sale of the land. The leaseholder was given to understand that the repairs didn’t need to be carried out if he was going to purchase the land. When the negotiations broke down, the landlord attempted to enforce the original six-month period and evict the tenant. The court ruled that the negotiations over the sale constituted a promise not to enforce the repair order, and that the tenant had acted on that promise to his detriment. The principle of promissory estoppel could therefore be used to estop the landlord enforcing his strict rights. In this case the suspension of the landlords strict rights were merely suspended, and a new notice period introduced as the consideration was broken.
In conclusion, it can be said that should someone “expressly or impliedly ask for something in return for a promise” it can be considered as consideration, however should there seemingly be something that seems like there is already an existing duty meaning consideration is invalid should someone go over and above their existing duties in the contract consideration may be valid.
Tobi Ford-Western 13L
