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Introduction A contract will be formed in the event of a valid offer, followed by an acceptance of that offer.^1 Consideration is the price of a promise—the value given for a promise so that a contract can be enforceable. Thus, consideration is a significant component of any contract, as a contract cannot be formed without the presence of some consideration.^2 Currie v Misa (1875) is the fundamental decision that established 'consideration,' which indicates that consideration can consist of a right, interest, profit, benefit, damage, or forbearance.^3 The doctrine of consideration (DOC) is one of the long-standing doctrines in contract law. DOC was a fundamental part of the legal system in England when it was first introduced in earlier days.^4 According to Mc Kendrick, the objective of DOC is to grant enforceability on an agreement.^5 There are several legal rules in regards to consideration. The rule relevant in this research paper is the performance of an existing contractual duty. The case of Stilk v Myrick (1809) is frequently cited as the basis for the pre-existing duty rule.^6 In regards to that, the case of Williams v. Roffey Bros & Nicholls (1989) is viewed as the most recent modification to the traditional rules presented in Stilk v Myrick.^7 Therefore, this paper seeks to critically discuss to what extent has the law endeavoured to shift away from the inflexible application of DOC. Body of Content According to DOC , the performance of a pre-existing contractual duty owed by the promisee to the promisor was insufficient consideration for a new promise to grant an added (^1) William R. Anson and Ernest W. Huffcut, 'Principles Of The English Law Of Contract' (1907) 7 Columbia Law Review < http://www.a4id.org/wp-content/uploads/2016/10/A4ID-english-contract-law-at-a-glance.pdf >. (^2) Ibid (^3) 'The Importance Of Currie V. Misa In Contract Law | DEDICATED' ( Legalsecretaryjournal.com , 2022) < https://www.legalsecretaryjournal.com/The_Importance_of_Currie_v._Misa_in_Contract_Law > accessed 23 February 2022. (^4) Clarence D. Ashley, 'The Doctrine Of Consideration' (1913) 26 Harvard Law Review < https://doi.org/ >. (^5) EWAN MCKENDRICK, CONTRACT LAW (OXFORD UNIV PRESS 2022). (^6) Stilk v Myrick [1809] England and Wales High Court (England and Wales High Court). (^7) Williams v Roffey Bros & Nicholls (Contractors) Ltd [1989] England and Wales Court of Appeal (England and Wales Court of Appeal).
benefit on the promisee.^8 This idea was endorsed by policy concerns since promisors could otherwise face blackmail or pressure from false promises.^9 By doing so, the classical approach appears to hinder the enforcement of post-contractual gratuitous promises.^10 This long- established rule arose from Lord Ellenborough's ruling in the case of Stilk v Myrick.^11 After two crewmembers abandoned the ship, the captain of a vessel agreed with the rest of the crew that the wages would then be divided among them if they returned the vessel to London without replacing the deserted seafarers.^12 The following are the case's specifics: It was decided that the extra wages were not to be paid after the ship returned to port. Stilk’s action to retrieve his portion of the extra pay was dispersed.^13 Since they agreed in their contracts to do everything they could in an emergency during the voyage, they were obliged to return the vessel even short-handed.^14 The courts' ruling in Stilk v Myrick differs in two reports.^15 The first report was the E spinasse report , subsequently rejected on policy grounds.^16 The policy was that it would have opened the door to duress if it had succeeded.^17 In the future, sailors would have demanded unreasonably upon the captain for the cost of meeting their contractual obligation to complete the voyage.^18 The second report was the Campbell report , which was rejected not on policy reasons but because Stilk owed no consideration to his master since he was merely doing his contractual obligation to return the ship to the harbour with his master.^19 It is critical to distinguish between the two reports. If the espinasse report had been implemented, it would have created the prospect of duress, as espinasse is not a well-known or highly appreciated report.^20 On the other hand, Campbell was known to write more than (^8) B Hough, 'The Doctrine Of Consideration: Dead Or Alive In English Employment Contracts?' [2001] Journal of Contract Law < https://researchportal.port.ac.uk/en/publications/the-doctrine-of-consideration-dead-or-alive- in-english-employment > accessed 24 February 2022. (^9) ibid (^10) ibid (^11) < https://www.casemine.com/judgement/uk/5a8ff8ce60d03e7f57ecda51 > accessed 24 February 2022. (^12) ibid (^13) ibid (^14) ibid (^15) < https://www.casemine.com/judgement/uk/5a8ff8ce60d03e7f57ecda51 > accessed 24 February 2022. (^16) Peter Luther, 'Campbell, Espinasse And The Sailors: Text And Context In The Common Law' (1999) 19 Legal Studies. (^17) ibid (^18) ibid (^19) ibid (^20) ibid
limited.^33 Both these cases are strikingly identical. The defendants in Williams received a practical benefit, and I can't help but critically think the same can be said of the master of the ship in Stilk. The promise of Stilk to sail the ship back to London provided him with a practical benefit, but this was deemed insufficient to constitute consideration by the Court.^34 Some people may be perplexed as to why the claim in Stilk was declined while the claim in Williams was allowed.^35 I am just as confused as both parties were merely carrying out their existing contractual obligations.^36 In essence, Williams should have followed Stilk's case if the doctrine of judicial precedent were to apply.^37 Academically argued that Stilk observed DOC strictly and was unrelated to circumstances in the late twentieth century.^38 Lord Justice Glidewell LJ mentions that the traditional principle was refined and its application narrowed but was never intended to be jeopardized.^39 He mentioned that Stilk was not withdrawn; it is still viewed as good law.^40 The judgment was merely an attempt to modernize the rule to make it more applicable to contemporary society; that attempt can be viewed as a success.^41 It is significant to note that some courts from the UK have moved away from the rule established in Stilk v Myrick.^42 However, it is still in effect in some Canadian jurisdictions. For instance, the case of Gilbert Steel Ltd v University Construction Ltd , decided in 1976, was a direct descendant of Stilk v Myrick.^43 According to the facts of this case, the parties initially entered into a contract to deliver steel at specific prices.^44 They then amended that contract (^33) ibid (^34) ibid (^35) Jordan Briggs, 'Williams V Roffey Bros: The Uncertainty In Contract Law' < https://www.legalcheek.com/lc- journal-posts/williams-v-roffey-bros-the-uncertainty-in-contract-law/> accessed 26 February 2022. (^36) ibid (^37) ibid (^38) Charlotte Mary Boardman, 'CONSIDERING CONSIDERATION: A CRITICAL AND COMPARATIVE ANALYSIS OF THE DOCTRINE OF CONSIDERATION IN THE ANGLO-CANADIAN COMMON LAW' (Masters of Law, The University of Kent 2013). (^39) ibid (^40) ibid (^41) ibid (^42) : Kim Do and Imroz Aliz, '"The Rule In Stilk V Myrick Is Alive But Unwell” The Current State Of The Law Regarding The Pre-Existing Duty Rule' < https://www.canlii.org/en/commentary/doc/2019CanLIIDocs3892 > accessed 27 February 2022. (^43) Richard Stone and James Devenney, Text, Cases And Materials On Contract Law (2014). (^44) ibid
to account for an increase in the prices set by a third party.^45 It was determined by the Court of Appeal that the agreement was not binding due to insufficient consideration.^46 On the other hand, six months after Williams v Roffey Brothers established the practical benefit principle, the English High Court reaffirmed it in Anangel Atlas Compania Naviera SA v Ishikawajima-Harima Heavy Industries Co Ltd.^47 Additionally, The High Court agreed in Lee v GEC Plessey Telecommunications, Simon Container Machinery ltd v Emba Machinery AB, and Adam Opel GmbH v Mitras Automotive (UK) Ltd with the Court of Appeal that practical benefit was sufficient consideration.^48 Giancaspro notes that the practical benefit principle's application has expanded over 30 years since Williams v Roffey Brothers.^49 Davis v Giladi , for instance, demonstrated that an ongoing association between contracting parties could constitute a practical benefit if it resulted in a benefit.^50 Similarly, in Gribbon v Lutton , the Court ruled that if the presence of a third party in a tripartite agreement benefits the performance of a party's promises, such benefit could constitute sufficient consideration under certain circumstances.^51 However, attempts to extend the practical benefit principle to cases of partial debt repayment met with fierce opposition at first.^52 The first attempt at this was quashed by a different Court of Appeal in Re Selectmove Ltd , which involved a company attempting to repay their Inland Revenue arrears through monthly instalments.^53 The Court of Appeal held that they were tied by the long-standing established in Pinnel's Case – and reaffirmed by UK's House of Lords in Foakes v Beer – that partial payment of debt does not constitute sufficient (^45) ibid (^46) ibid (^47) Kevin Patel, 'Manchester Review Of Law, Crime And Ethics' [2019] The Student Journal of The University of Manchester, Department of Law < https://hummedia.manchester.ac.uk/schools/law/main/research/student- review/student-law-review-vol5-final-web.pdf > accessed 28 February 2022. (^48) Ibid (^49) 'Economic Duress Or Practical Benefit | Law Tutor Esquire' ( | Law Tutor Esquire , 2022) < https://lawtutoresq.co.uk/economic-duress-or-practical-benefit> accessed 27 February 2022. (^50) ibid (^51) ibid (^52) Kevin Patel, 'Manchester Review Of Law, Crime And Ethics' [2019] The Student Journal of The University of Manchester, Department of Law < https://hummedia.manchester.ac.uk/schools/law/main/research/student- review/student-law-review-vol5-final-web.pdf > accessed 28 February 2022. (^53) ibid
properly" and establishes robust limitations on applying it, then the vast majority of the current critics will be resolved. 1825 words
References Court Cases Stilk v Myrick [1809] England and Wales High Court (England and Wales High Court) Williams v Roffey Bros & Nicholls (Contractors) Ltd [1989] England and Wales Court of Appeal (England and Wales Court of Appeal) Websites 'Basic Principles Of English Contract Law' ( A4id.org ) accessed 23 February 2022 Carter M, 'Explanation On The Existing Contractual Duty To Supply Goods And Services' ( The Student Lawyer , 2014) accessed 26 February 2022 'Stilk V Myrick' ( casemine.com ) accessed 24 February 2022 'Williams V Roffey Brothers & Nicholls (Contractors) Ltd [1989] EWCA Civ 5 (23 November 1989)' ( Bailii.org , 2022) accessed 24 February 2022 Dissertation Boardman C, 'CONSIDERING CONSIDERATION: A CRITICAL AND COMPARATIVE ANALYSIS OF THE DOCTRINE OF CONSIDERATION IN THE ANGLO-CANADIAN COMMON LAW' (Masters of Law, The University of Kent 2013) Giancaspro M, 'For Your Consideration: Old Rules, Practical Benefit And A New Approach To Contractual Variation' (PhD, The University of Adelaide 2014) Journal articles Anson W, and Huffcut E, 'Principles Of The English Law Of Contract' (1907) 7 Columbia Law Review Ashley C, 'The Doctrine Of Consideration' (1913) 26 Harvard Law Review
Briggs J, 'Williams V Roffey Bros: The Uncertainty In Contract Law' accessed 26 February 2022 Dawson F, 'Contract As Assumption And Consideration Theory: A Reassessment Of Williams V Roffey Bros' (2011) 42 Victoria University of Wellington Law Review Do K, and Aliz I, '"The Rule In Stilk V Myrick Is Alive But Unwell” The Current State Of The Law Regarding The Pre-Existing Duty Rule'
