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Law Notes Contract Law Notes

Performance Of Pre Existing Duty Notes

Updated Performance Of Pre Existing Duty Notes

Contract Law Notes

Contract Law

Approximately 1511 pages

Contract law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB contract law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

These were the best Contract Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest...

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Performance of Pre-Existing Duty

Pre-existing duties imposed by public law

  • Chen Wishart: general rule is that a promise to perform/performance of pre-existing duty in public law is not consideration for a reciprocal promise

    • 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]:

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

        • OR where organisers would else have to pay for the service from their own pocket

          • Then consideration will be given by the police through additional service, and consideration given by X through payment.

      • Ward v Byham [1956]:

        • Denning LJ: Promise to continue to perform pre-existing duty is always good consideration

          • Because gives a direct benefit to the person to whom it is given.

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

        • Chen Wishart: Denning recognises circumvention of ordinary principle of consideration.

Pre-existing duties owed to a third party

  • Performance of existing contractual duty to third party = consideration

  • So if Y pays X to perform his pre-existing duty to Z

    • Then this will be consideration (by Y, not Z)

    • Pao On v Lau Yiu Long [1980]:

      • Lord Scarman:

        • Promise to perform to 2nd party, or the performance of a pre-existing contractual obligation to a third party

          • can be valid consideration.

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

          • may quite well amount to valid consideration

            • because 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

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

    • 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

    • So, if X has outstanding obligations to Y

    • 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

  • Traditional Rule

    • 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

        • 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

        • Leaves door open for modifications allowing greater payment for same duty w/o consideration as long as no duress.

          • Traditionally accepted rule = Campbell.

  • Traditional Exceptions to the Traditional Rule

    • 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

        • X therefore gets “more” as consideration for extra pay.

    • 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.

        • 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?

  • A contradiction to the traditional rule – practical benefit is valid consideration

    • 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

        • D received numerous benefits from agreeing to pay more

          • Ensures C continues work

          • Avoids penalty for delay

          • Avoiding trouble and expense of finding substitute.

        • If A and B have a contract where A promises to perform for payment and B later promises A an additional payment in return for A's promise to perform his contractual obligations on time

          • And as a result of giving his promise B obtains in practice a benefit, or obviates a disbenefit,

            • the benefit to B is capable of being consideration for B's promise

              • so that the promise will be legally binding

        • This is so even if B receives no legal benefit from the second agreement.

Same for less – Where X promises to pay the same despite Y having only given part performance

  • Traditional Rule:

    • Foakes v Beer: B promised to forego the interest of F’s debt if F paid up in time. When F paid up within the required time, B turned round and demanded the interest as well.

      • Lord Blackburn:

        • Authorities say you need something collateral in addition to a lesser sum in order to discharge a greater sum

          • Can’t just pay the lesser sum in discharge of a greater

            • So do actually need legal benefit, not just practical.

        • Problem = all men of business recognise that prompt payment of part of their demand may be better for them

          • rather than sticking to their rights and demanding the entirety

  • Arguably, even though Foakes recognised no legal benefit, it could have seen some practical benefit per Roffey

    • Re Selectmove Ltd [1994]:

      • Held Practical benefit not recognised b/c would disapply Foakes without authority to do so – was up...

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