The provision of some form of consideration is an essential requirement in the establishment of contractual relationships. This question requires candidates to examine the operation of the rules relating to whether or not the performance of existing contractual duties can provide consideration for some new promise.
Bry and Cis entered into a contract with Ami to carry out the work for an agreed price. However, before the completion of the contracts Ami promised each of them a further payment, although she is now refusing to pay more than the original agreed sum of £5,000. The question is whether Bry and Cis can enforce Ami’s promise to pay them the additional sums.
In order to require Ami to make payment at the new level, those claiming it must show that they provided legally ‘suffi cient’ consideration for her promise. The question, therefore, is whether the performance of existing contractual duties can ever provide consideration for a new promise. The long-established rule of contract was that the mere performance of a contractual duty already owed to the promisor could not be consideration for a new promise. Thus in Stilk v Myrick (1809) when members of a ship’s crew deserted, the captain promised the remaining members of the crew that they would share the deserter’s wages if they completed the voyage. Subsequently, however, when the owners refused to make the promised payment it was held that the captain’s promise could not be legally enforced as the sailors had only done what they were already obliged to do by their contracts of employment.
Where, however, the promisee did more than they were already contractually bound to do then the performance of the additional task does constitute valid consideration for a new promise (Hartley v Ponsonby (1857)).
The more contemporary case of Williams v Roffey Bros (1991) expanded the category of consideration. In that case the Court of Appeal held that Roffey Bros had enjoyed practical benefi ts as a result of their promise to increase Williams’ previously agreed payment for work under an existing contract, although Williams did no more than they were contractually bound to do. The benefi ts enjoyed were that the work would be completed on time, they would not have to pay any penalty; and they would not suffer the bother and expense of getting someone else to complete the work.
As a result it would now seem that the performance of an existing contractual duty can amount to consideration for a new promise in circumstances where there is no question of fraud or duress, and where practical benefi ts accrue to the promisor.
It remains to apply the preceding legal principles to the case in point. First of all as regards Bry, he had a contract with Ami to do the plastering, but insisted that Ami increase his money before he would complete the work. Bry might try to argue that his situation falls within the ambit of Williams v Roffey Bros, and that therefore he can enforce the promise. He would point out that Ami did enjoy practical benefi ts in that the gallery was fi nished on time thus allowing her to open her exhibition. It is clear, however, that this situation is signifi cantly different in that whereas in Williams v Roffey Bros the plaintiff did not exert any undue pressure on the defendants to induce them to make their promise of additional money, in this situation Bry has clearly exerted a form of economic duress on Ami to force her to increase the contract price: Ami was left with no real choice but to agree to Bry’s terms or else she would have suffered a potentially substantial loss. Such unfair pressure would take the case outside of Williams v Roffey Bros, and the old rule as stated in Stilk v Myrick would apply, and Bry would be unable to enforce the promise for the additional £1,000. As regards Cis, it would appear that he did no more than he was required to do under his contract with Ami. Consequently he would be subject to the operation of Stilk v Myrick and could not enforce the promise for the additional £1,000. |
