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Performance Of Pre Existing Duty Notes

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Performance of Pre-Existing Duty Pre-existing duties imposed by public law

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Chen Wishart: general rule is that a promise to perform/performance of preexisting duty in public law is not consideration for a reciprocal promise o BUT courts circumvent rule if public policy reasons of using police as private army etc. are not undermined
? Mainly by holding that more was promised than was strictly owed under the pre-existing legal duty.
? Baker LJ in West Yorkshire Police Auth. v Reading Festival Ltd [2006]:

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When services will have been asked for but will be beyond what police consider necessary to meet public duty obligation

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OR where organisers would else have to pay for the service from their own pocket o Then consideration will be given by the police through additional service, and consideration given by X through payment.
? Ward v Byham [1956]:

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Denning LJ: Promise to continue to perform pre-existing duty is always good consideration o Because gives a direct benefit to the person to whom it is given.

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Goold: May also be a case about how X did get something beyond that bargained - not just looking after child, but making it "happy".

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Chen Wishart: Denning recognises circumvention of ordinary principle of consideration. Pre-existing duties owed to a third party

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Performance of existing contractual duty to third party = consideration

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So if Y pays X to perform his pre-existing duty to Z o Then this will be consideration (by Y, not Z) o Pao On v Lau Yiu Long [1980]:Lord Scarman:

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Promise to perform to 2nd party, or the performance of a preexisting contractual obligation to a third party o

can be valid consideration.

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Agreement to do an act which the promisor is under an existing obligation to a third party to do, o

may quite well amount to valid considerationbecause promisee obtains the benefit of a direct obligation.

Contract Modifications -where there is a pre-existing contractual duty to the other party Agreements to end the contract

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When contract not fully executed and both parties owe outstanding obligations to each other

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o Each party provides consideration by agreeing release of the other from their obligation in return for release from their own obligation BUT if only one party wants to terminate the contract o So, if X has outstanding obligations to Y o But Y has not no outstanding obligations to X
? X can only terminate the contract by giving Y something extra in consideration in return for release.

More for same - Where X agrees to modify the contract by paying more for Y's pre-existing contractual duty

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Traditional Rule o Still v Myrick [1809]: M agreed with S to work a voyage. 2 of 11 S deserted, so M agreed to share the wages of the deserters with the remaining 9S if they worked the ship back to London. When they got there, M refused to pay
? Campbell's Report: S's claim failed because provided no consideration for the master's promise - was already contractually obliged to sail the shop home

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So unless additional consideration, modification for giving more for pre-existing duty means new agreement is unenforceable.
? Espinasse's Report: S's claim failed b/c didn't want sailors to make extortionate demands on masters of ships during voyage

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Leaves door open for modifications allowing greater payment for same duty w/o consideration as long as no duress. o Traditionally accepted rule = Campbell.

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Traditional Exceptions to the Traditional Rule o Where promisee gives "more" than he was obliged to under pre-existing duty
? E.g. able seaman promoted to second mate and thus entitled to more pay as more onerous duties to perform

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X therefore gets "more" as consideration for extra pay. o Where original contract is abandoned and a new one formed
? In which case, no pre-existing duty b/c been extinguished
? New consideration is the promise to perform a new duty (albeit same one as before) for new price.

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McKendrick: why didn't S use this argument instead?
Could it not be argued it was a new contract and the former had been abandoned?

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A contradiction to the traditional rule - practical benefit is valid consideration o Williams v Roffey Brothers [1990]: D, under a penalty clause for failing to complete on time, subcontracted work to C. C then asked for more money so as to fulfil obligations. D promised this, work completed, but D refused to pay.
? Glidewell LJ

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D received numerous benefits from agreeing to pay more o Ensures C continues work o Avoids penalty for delay o Avoiding trouble and expense of finding substitute.

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