Consideration in Contract Law

2017 Words9 Pages
In contract law, the goal is to determine, from a given set of facts, whether legal obligation and duties will arise in a contract. A common approach is to identify the facts that must accompany promissory words in order to have legal effects. The issue under discussion in this paper will be to determine whether “a promise to do what a person is already obliged to do can or cannot constitute consideration”. This paper will categorize considerations in pre-existing duties into three separate categories: 1. Performance of contractual duty already owed to the promisor, 2. Performance of contractual or public duty already imposed by law, and 3. Performance of contractual duty owed to a third party. Consideration, according to the doctrine of consideration stated in Currie v Misa, must consist of either some detriment suffered by one party, or some benefit accrued to the other. In most cases, where the duty promised is precisely the same thing asked by the promisor and no more, the promisee is bound to do it, and no new enforceable consideration is moved from the promisee. However, the focus of this paper will be to explore the cases where the performance of obliged duties amount to considerations. When someone merely performs what he was already bound to do, such performance is not good consideration to enforce a promise of extra money. He did not provide any additional work or consideration for the extra reward paid by the other party. This well-established doctrine originates from Stilk v Myrick, where Lord Ellenborough gave the celebrated dictum that additional consideration must be provided by the promisee in order to take advantage of a new promise relating to an existing contract. It is conceivable that by setting a precedent that allows an already obliged promise to constitute a valid consideration will operate to encourage the non-fulfillment of duties,
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