Consideration
Currie v. Misa 1875 House of Lords
A valuable consideration in the sense of the law may consist either in some right, interest, profit, or benefit accruing to one party, or some forbearance, loss or responsibility, given, suffered or undertaken by the other.
The desertion was 19 out of a crew of 36. The voyage had become dangerous.
In continuing a voyage that had become dangerous, the sailors had provided valuable consideration in respect of the promise of extra pay.
So there are limits to the rule in STILK v. MYRICK
New Zealand Shipping Co. Ltd. v. A. M. Satterthwaite & Co. Ltd. 1975 Privy Council
B promised to do something for A.
C promised to do something for B.
Has B provided consideration in respect to C's promise to him (B)?
Such an act is valuable consideration.
Non-binding precedent.
- Roscorla bought a horse from Thomas
- some time after the sale, Thomas affirmed that it was sound
- it was not
- Roscorla sued Thomas upon this affirmation
The action failed.
Although Roscorla had furnished consideration in the form of payment at the time of the sale he had furnished none for the affirmation.
The consideration which a plaintiff alleges must normally be given in respect of the promise made by the defendant.
Consideration is the hallmark of mutuality, so that it must be "present", not "past".
- two members of a crew deserted their ship during a voyage
- the master promised the rest that, if they worked the ship to port, the deserters' pay would be split between them
The crewmen could not sue upon this promise.
At the time when it was made, they were already under an obligation to work the ship to port.
Where A is already under contract to do something for B, and B makes a fresh promise on condition that A performs his duty, the performance will not amount to consideration for the fresh promise, and therefore A cannot sue upon it.
Distinct: HARTLEY v. PONSONBY
Consideration must be real (= something of some ascertainable value in the eye of the law), but need not be adequate
(caveat emptor; peppercorn theory).
A son sued his father's executors, alleging that the father had promised to pay him some money if he would cease, as the father alleged the son had done, complaining to him that he had been unfairly treated.
This promise was too vague to be a "real" consideration.
It was no more than a promise to stop "boring" the father.
Williams v. Roffey Bros. and Nicholls Ltd. 1991 Court of Appeal
Sub-contractors were promised extra payment if they completed work on time.
- there has been the provision of valuable consideration
- the benefit held to have been received by the other party (the contractors, that is) was that penalty clauses for late work were avoided
This was decided so although the
STILK v. MYRICK (1809) principle was upheld.