Consideration Evaluation

• Deciding if Value is 'Adequate' Consideration is Difficult

  • little guidance as to what counts as valid consideration
  • avoids any discussion of 'fair', make consideration a one-sided process, problem
  • e.g. chocolate wrappers for a CD, value, anything can be consideration; Chappell v Nestle
  • Thomas v Thomas - £1 per year in rent was valid, shows even when value of consideration is 'inadequate', still accepted as long as both parties think it is sufficient
• Can't Be Past Consideration

  • restrictive rule, allows D to make and break promises to pay after a job has been done with no punishment
  • prevents claims being made by C looking to take advantaged of D who has thanked them for doing a job without payment
  • unrealistic in business settings, ignores the fact that payment by results is common, could lead to exploitation by employers who will argue there is no consideration for a job which was already done to try and earn a bonus; Re McArdle
  • balance, past consideration, valid, if there is an implied promise to pay based on skill and expertise; Re Casey's Patent
  • little detail for amount of skill needed, ambiguous
• Existing Duty Rule Applied Inconsistently

  • fulfilling an existing contractual duty/obligation will not be enough; Stilk v Myrick
  • reality is more complicated, number of cases reach different decisions
  • differences can be easily illustrated, 2 crew members versus 19 with an unsafe ship, extra work and not part of existing duty; Hartley v Ponsonby
  • D offered more money to complete contract on time and to avoid penalty, additional benefit, D benefited in some way to avoid a disadvantage; Williams v Roffey Bros
  • gradual change in rules to a commercial focus on value of consideration
• Outcomes Can Be Unfair

  • consideration must move from the promisee, unfair, bride-to-be's father died being the wedding; Tweddle v Atkinson
  • groom could not claim for the money promised by bride-to-be's father, even though it was his intention
• Is It A Necessary Element?

  • if there is an obvious agreement
  • Professor Atiyah, an offer, acceptance and ITCLR is enough
  • Law Revision Committee 1937: 'written promise should always be binding, past consideration should be allowed, performing an existing duty should be considered good consideration'