From the above it follows that Alexandra and Charles made different promises to Bertram and the Décor Ltd director agreed to accept the lesser payment from Alexandra. In each situation there must be consideration (something in exchange) for all of the promises to be enforceable. Consideration was defined by Lush J in Currie v Misa as “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… ”. B v A
The first question to be answered is whether the Alexandra’s promise to pay an extra £6,000 to Bertram is enforceable. The general rule is that agreements stemming out of a pre-existing duty are void for lack of consideration as it is the performance of an existing obligation and not sufficient (Stilk v Myrick). But if a promisee has done more than she was contractually obliged to do, then the extra work is consideration provided for the promisor’s promise (Hartley v Ponsonby). This rule can hardly be applied here, as Bertram actually had to perform the job he was contractually obligated to do, he did no extra work. Another approach is to check if Williams v Roffey can be applied here. According to this case the consideration for the promise can take a form of “factual”, or “practical benefit", which is given from one to the other party. Lord Glidewell held that there have to be several conditions to apply this rule. •
One party has entered in a contract with another to do work for, or to supply goods or services in return for payment (there was a contract because Alexandra employed Bertram to install a new kitchen) •
Before it is done, one party has reason to believe that another may not be able to complete the work (It was clear for both Alexandra and Bertram that the work wouldn’t be completed on time) •
One party promises another more (Alexandra offered an extra £6,000 to Bertram) •
One party ‘obtains in practice a benefit, or obviates a...
Please join StudyMode to read the full document