Relationship between consideration and duress

relationship between consideration and duress

L. ; “Economic Duress: Recent Difficulties and Possible Alternatives” [] There is an enormous difference between exceptional deviations because of. The main difference between this consideration definition and older is that . One of the reason why court developed duress and promissory. Contract law - Duress. As Lord Atkin said in Thorne v Motor Trade Association [ ] AC , "The ordinary blackmailer normally threatens to do what he.

After full payment by Gay, Loh alleged: Loh, supra note 5 at para. Gay, supra note 7 at paras. Electronic copy available at: Of course, parties can bargain around fiduciary duties, either ex ante at the time of creating an express trust or by obtaining consent to a conflict of interest as and when it arises 14 or ex post by ratifying a breach.

This is of particular concern when the Court decides on a basis not put or argued by the parties. Phipps [] 2 A. For example, in the context of bond issues using a trustee structure: Lexis Nexis Butterworths at Sweet and Maxwell, at He states, at Singapore University Press, at How the case is to be fought or settled rests solely with the parties. For previous extra-judicial critiques of the doctrine of consideration by Phang J.

Loh, supra note 5 at paras. Ng Khim Ming Eric [] 1 S. For critiques of the lack of conceptual clarity and viable criteria for the doctrine of economic duress, the uncertainty that still besets the doctrine of undue influence in its practical application, and the as yet underdeveloped doctrine of unconsionability in English law, see Phang J. Adequacy and Practical Benefit A.

Adequacy of Consideration While the bargain theory of contract is the most obvious justification for the consid- eration requirement, Phang J. Indeed, Atiyah sees the case as enforcing a promise without consideration in the traditional sense. In other cases, policy reasons support the enforcement of the promise despite the absence of bargain consideration.

There is an enormous difference between exceptional deviations because of countervailing policies and an approach that abolishes the rule altogether. Clarendon Press, at [Consideration: The Santanita [] P.

What is the relationship between consideration and economic duress? - The Student Room

Firmstone E. Blackpool BC [] 1 W. Braithwaite E. Lau Yiu Long [] A. Byham [] 1 W. Consideration and Serious Intention Lastly, while it is true that consideration need not be adequate for contract forma- tion, the rule is misleading in that a grossly unbalanced contract can be set aside at the stage of vitiation.

Unfairness in exchange plays a direct40 or indirect,41 although not exclusive, role in a host of vitiating factors e. Practical Benefit Phang J.

If we accept that a bird in the hand is better than two let alone one in the bush46 then the idea that the actual receipt of performance or even part performance confers a benefit over and above the right to performance is consistent with the core idea of the consideration doctrine as bargain exchange.

This move would have avoided the need to distort the promissory estoppel doctrine in order to enforce a promise to accept part performance in Collier v. The illegitimacy of the threat depends on the nature of the threat and the nature of the demand: Lord Blackburn notes the: Hart Publishing forthcoming in Myrick49 and Foakes v.

Beer are based on the fiction that a contract right equates with its performance.

The unpalatable truth, recognised in Williams v. Roffey, is that there is no straightforward equivalence between the two. Contract law itself does not take such an elevated view of contractual obligations. This does not necessarily undermine the notion that contract law recognises a duty to perform.

Contracts are made in order to be performed. Consideration and Serious Intention A. This ensures that a promise has actually been made the evidentiary functionthat the promisor understood the consequences of making it the chan- nelling function and that she took care in making it the cautionary function.

Fuller 49 2 Camp. Oxford University Press, at ; Hugh Beale, ed. The Law of Contract, 12th ed. Palgrave Macmillan, at Consideration and Serious Intention argues that the doctrine of consideration performs the same three functions. Second, an informal undertaking not contained in a deed unsupported by consideration is unenforceable even if the promisor declares in front of witnesses and in writing that she seriously intends to be bound.

Third, the absence of consideration does not necessarily, or even normally, indicate that a promise is perjured, incautious or unintended. Roffey, supra note 22 at 18 C.

Oxford University Press, at ; U. R 23 at para. Deeds are effectively enforced as executed gifts, in the sense of a symbolic delivery of the object, since they are enforceable only upon the act of delivery of the deed to the donee. In contrast, consideration enforces promises as promises. Personal freedom or autonomy is recognised as valuable morally, politically and economically in modern liberal soci- eties.

Its preservation is a ready justification for state action. Its core idea is that of self-authorship; that there is something intrinsically valuable in pursuing freely chosen goals and relationships. The primacy of private ordering receives support from classical liberals and libertarians such as Mill,67 von Hayek,68 Friedman,69 Nozick70 and Fried. Classical liberal theorists give autonomy a distinctively negative emphasis in stressing freedom from interference with individ- ual choices.

The assumption is that freedom is good and the more of it the better. The correlative demand is for small or minimalist government. Indeed, Nozick goes so far as to argue that a consistently libertarian soci- ety would allow an individual to sell himself into slavery, rejecting the notion of inalienable rights. If autonomy was the sole and unqualified value, contract law would have little content.

All contractual questions When is there a contract? What are its contents? Is a contract vitiated? What are the remedies for breach? The only issue becomes one of fact finding.

relationship between consideration and duress

In truth, most of contract law relates to the qualifications on the core idea of enforcing seriously intended undertakings; that is, to the limits of freedom of contract. No legal system does or can enforce all promises and the idea that all serious undertakings should be respected gives no guidance in determining which undertakings should be supported by the force of law.

Nor, for example, can it explain why certain express terms should be unenforceable e. Parker and Son, University of Chicago Press, A Theory of Contractual Obligation Harvard: Harvard University Press, Not only is the idea of respect and thus enforcement of every promise inaccurate as a matter of description of contract law, it is also normatively questionable. There is no reason to prioritise a past choice over a present one when both are equally valid expressions of her freedom.

This may entail the rejection or alteration of previous beliefs or goals. Third, even if we believe that the promisor should do as she promises for example, as a matter of self-consistencyit does not explain why contract law should weigh in on behalf of the promisee as a matter of justice.

For this we need the doctrine of consideration. It is a necessary but not sufficient condition of contractual liability, leaving room for other important values. Before we explore some of these competing values and how they are accommodated in the law, a comment is due on the obvious substitute for consid- eration which was not expressly considered in Gay v.

Loh; namely, the requirement of intention to create legal relations. Cambridge University Press, Oxford University Press, and Henry Hardy, ed. Oxford University Press, Towards a Liberal Theory of Contract Oxford: Clarendon Press, [The Morality of Freedom]. First, the phrase is apt to confuse as it has at least two meanings. It is now widely accepted that the respective presumptions have their source in public policy. These include the concern to avoid opening the floodgate to litigation;80 the promotion of market transactions between people without a pre-existing relationship who would otherwise be reluctant to contract; and, the concern to limit state intrusion in the private lives of its citizens.

This theme is picked up again in Part V. B as supporting the retention of bargain consideration. Intention to create legal relations in its alternative and substantive sense is that parties must intend to be legally bound. In this sense, intention to create legal relations as an additional requirement is superfluous; even supporters of consideration take its necessity for granted.

The crux of support for the serious intention test is the elimination of any other criterion for enforcement. Balfour [] 2 K. Constitution and Proof of Voluntary Obligations: Formation of Contract, 10 Marchtook the view, at para.

Agreements such as these are outside the realm of contracts altogether. The common law does not regulate the form of agreements between spouses The terms may be repudiated, varied or renewed as performance proceeds or as disagreements develop, and the principles of common law A Restatement, supra note 36 at To be legally enforceable, gratuitous promises will presumably need to be sensible, rational activities.

But surely we may need to ask more about the kind of circumstances in which people do rationally make gratuitous promises, and we may need to distinguish various classes of cases… [it may be undesirable to enforce them] to the same extent as ordinary commercial promises… it may be wise to provide for a much wider defence of frustration… Perhaps too, a wider latitude should be allowed to some form of defence based on mistake.

Perhaps we need to consider the possibility of the conduct of the promisee depriving him of the right to enforce a gratuitous promise.

Perhaps we need to consider a shorter limitation period. The questions follow in rapid succession: Bound to what legal effect? What rights or liabilities were intended to be transferred, created, waived, or suspended by the promisor?

Was it to be absolute or conditional? To what excuses vitiating factors was it to be subject? Such an elastic criterion as the intention to create legal relations will be no less problematic or susceptible of judicial manipulation than bargain consideration itself. In the organic system that is the common law of contract, rights, remedies and excuses are interconnected.

Expanding the basis for enforcement will require the appropriate recalibration of the excuses and remedies. If enforcement is to be divorced from exchange, it is not obvious what the proper remedial response should be. The demands of justice will vary with the particular context whether commercial, consumer, charitable, family, and so on and the particular reason for enforcement whether bargain, reliance suffered, benefit received, fulfilment of family responsibilities, and so on.

They had already been done when the promise had been given therefore they couldn't be consideration for a promise to do something in the future. Therefore C had no grounds to sue. Was it at the request of the promisor? Was payment understood to be due? If there is, then consideration may be valid. Would the contract be enforceable apart from this issue? ONLY if all of this criteria is satisfied will past consideration be good consideration.

Consideration must move from the promisee? Tweddle v Atkinson Father of bride and father of groom both promised that they will give money to groom. One paid but the other did not pay and died. Groom sues estate of the deceased. Groom is not entitled to money because he hasn't got a cause of action - he has given no consideration to the deceased for the promise.

relationship between consideration and duress

Strange circumstances of case: But the money wasn't promised to him he's not the promisee so he has no loss. Only person with consideration has no loss, and the only person with a loss has no cause of action.

The wrong therefore goes uncompensated.

Consideration Promissory Estoppel And Duress | Oxbridge Notes the United Kingdom

Consideration must be sufficient, not adequate. Chappelle v Nestle Co - royalty issue. Consideration need only be sufficient. A peppercorn does not cease to be good consideration if it is established that the promisee does not like pepper and will throw away the corn. Public policy argument - if not hassling someone was sufficient consideration, then it's like sanctioning blackmail.

Hamer v Sidway - giving up legal rights is good consideration. This case is distinguishable from White v Bluett because Hamer was refraining from doing things that he was legally entitled to do. In White, he was refraining from hassling someone. Performance of an existing contractual obligation is not good consideration for a promise of extraStylk v Myrick Exception 1: The difference was this time so many sailors deserted that continuing the voyage became a 'new and dangerous journey'.

Staying on board therefore meant that the sailors were doing something extra.