Existing Contractual Duty

Topics: Contract, Consideration, Contract law Pages: 9 (2782 words) Published: February 7, 2011
Assignment Topic

Traditionally, the performance of an existing contractual duty did not constitute valid consideration for a promise to pay extra money to the contractor. See for example, Stilk v Myrick (1809) 2 Camp 317. However, the decision in Williams v Roffrey Bros & Nicholls (Contractors) [1991] 1QB1 impacts upon this traditional approach.

Explain and justify the traditional approach of the courts and extent to which that approach is varied by the decision in Williams v Roffrey Bros & Nicholls (Contractors), and the decision in the NSW Supreme Court in Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723.

• The assignment must be of 2,000 to 2,500 words in length. • The assignment must be typed or printed on a one side only of A4 paper with 1.5 or double spacing and leaving a left-hand margin wide enough for examiner’s comments and corrections. • The assignment must include footnotes* and a bibliography* (*see Appendix A: Australian Guide to Legal Citation) • Assignments will be marked out of a possible 25 marks.

Answer – DRAFT 1

The emergence of the doctrine of consideration is really somewhat due to the Statute of Frauds 1677 where it was stated that any transfer of property would actually need to be done so by a deed. However, if one has supported his promise with consideration, then he would be able to enforce such promise under the law.

How do we ascertain the existence of consideration? Various academics and judges had tried to give us a definition for the doctrine of consideration. However, there is only 2 person that really standout i.e. Lush LJ as well as Prof. Atiyah.

Lush LJ in Currie v Misa (1875):
" A valuable consideration in the eyes of the law may consist either in some right, interest, profit or benefit accruing to the one party or some forbearance, detriment loss or responsibility given, suffered or undertaken by the other..."

Atiyah on the other hand had rigorously attacked the benefit detriment analysis in his work Consideration in Contract and have defined consideration in a most liberal manner when he said that:

" The truth is that the courts never set out to create a doctrine of consideration. They have been concerned with the much more practical problem of deciding in the course of litigation whether a particular promise in a particular case should be enforced ... When the courts found a sufficient reason for enforcing a promise they enforce it; and when they found that for one reason or another it was undesirable to enforce a promise, they did not enforce it. It seems highly probable that when the courts first used the word "consideration" they meant no more than that there was a "reason" for the enforcement of the promise. If the consideration was "good", this meant that the court found sufficient reason for enforcing the promise."

What Prof. Atiyah actually meant by that statement is that valuable consideration is one that is merely legal i.e. a conduct that is not illegal in nature and does not mean there must be a benefit or a detriment before it can be said to be a valuable consideration. He further argues that at times, the courts actually bend their backs to enforce a contract and say that there is a valid consideration. ____________________________

*LLB (Hons) London

It is often been argued that the 4 rules to consideration have the determining factor to the existence to the doctrine of consideration. But, do you actually think that these factors are actually useful today taking into account the changes of the law and the time that the cases had first been decided? Taking each factor one by one, one could best see the relevance and the accuracy of such factors today.

The first rule is that the consideration must move from the promisee. This is to say that in order a person would want to enforce a promise; the promisee...
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