Consideration

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  • Created by: huth0
  • Created on: 27-02-17 19:06
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  • Consideration
    • Sir Frederick Pollock - An act or forbearance of one party, or the promise therof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable
    • Consideration may be executory or executed but it may NOT be past
      • Executory consideration is where a promise is exchanged for a promise - performance on both sides will occur in future
      • Executed consideration is where there is an act in return for a promise
      • 'Past consideration is no consideration'
        • Re McArdle 1951 - worked on house before promise to pay was made
        • Exception to 'bringing something new to the bargain'
          • The rule in Lampleigh v Braithwaite 1615 - where there is an implied promise to pay
    • Consideration must move from the promisee
      • The person receiving the benefit of the promise must provide valid consideration
      • Consideration need not be to the promisor
    • Consideration must be sufficient but need not be adequate
      • Consideration provided by each side does not need to be equal in value
        • Thomas v Thomas 1842
      • Sufficient consideration must have some economic value
        • White v Bluett 1853
      • Giving up something of value can amount to consideration e.g. agreeing not to sue in return for something else
    • Where there is a pre-existing duty, it is no good promising something you are already bound to do.
      • You must offer something new which is over and above your existing obligation to him
      • Pre-existing public duty - Collins v Godefroy 1831 - Collins already under a public duty to attend court and so Godefroy did not have to pay him
        • Contrast to Ward v Byham - where mother went above and beyond legal duty
        • Pre-existing contractual duties - Stilk v Myrick 1809 - voyage where two members left and captain promised more pay for crew to stay but not bound to do so as crew were already under a pre-existing contractual duty.
          • Contrast to Hartley v Ponsonby 1857 - crew were not under pre-existing contract to cover half the crew and so captain had to pay

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