ASSIGNMENT

IS PERFORMANCE OF EXISTING LEGAL DUTY & GOOD

Submitted To: Zukhraf Ahmad

Submitted By: Muhammad Usman

MSc Physics (1st Sem)

University of Lahore.
1. Performance of Existing Duty

What is performance of existing duty? Its means that makes a promise to another

person in order to exchange for the other's promise or performance of something that the

other person is already obligated to do. Can the performance of existing duty amount to

consideration and how much does it will amount to consideration? Therefore, in initially we

should understand what is consideration is about. Consideration is a benefit to a promisor but

it is a disadvantage to the promise or maybe for both. In the case Currie v Misa (1975), it was

stated that " consideration existed when there was some right, interest, profit or benefit

accruing to one party, or some forbearance, detriment, loss or responsibility, given, suffered

or undertaken by the other one." Both parties must agree for a contract. For example, you cut

my hair and I give you RM5 for the cutting service. I give you my car and you give me

RM1000. Existing duty is that a promisee is already bound to perform an existing legal duty.

Definition

Performance of an existing duty is cannot constitute a consideration.

According to the law, performance of an existing duty is cannot constitute a consideration.

The performance of an existing contractual duty owed to the promisor is not good

consideration for a fresh promise given by the promisor.

Generally, Performing a legal duty already owed under a contract does not

constitute consideration unless that duty is unclear or honestly disputed. That is, once a party

agrees to do something under a contract, that party cannot change the terms without

consideration and expect the new terms to be enforceable.

According to the law, performance of an existing duty is cannot constitute a

consideration. Now seems that the performance of an existing duty may constitute

consideration for a new promise, in the circumstances where no duress or fraud is found and

where the practical benefits are to the promisor. The performance of an existing contractual
duty owed to the promisor is not good consideration for a fresh promise given by the

promisor. However, performance of an existing contractual duty owed to a third party can be

good consideration.

What Constitute Consideration?

The mutual promises were constitute a consideration for each other. For example, I

promise you to do something, in consideration for which promise you promise me to do

another things. The person who creates the promise is promisor and the person who accepts

the promise is call promise. A promise on one side is a good consideration for a promise upon

the other. It is not necessarily doing an act, but may be the making of a promise to do an act,

which may constitute the consideration. This has to depend upon the requirements of the

offer and acceptance. In all bilateral contracts the consideration for the promise of each is the

promise of the other. A promise to perform an existing duty is no consideration unless it

binds one within an exact time to do or refrain from doing an exact thing. A promise cannot

be a consideration unless it is exact enough to be broken.

Contents

Performance of An Existing Duty

Existing duty is a promisee that already bound to perform an existing duty. Beyond the

existing duty that which they are already contracted is consideration. In the orthodox view,

performance of an existing duty does not constitute consideration for the new promise.

Performance Of An Existing Duty Of Domestic/ Social

These issues are well illustrated by the case of Thomas v Thomas (1842). This case is

talking about Ps husband had made it clear that if his wife survived him, she should have the
use if his house. After her husbands death, P agreed with the defendant, her husbands

executor, that she should have the use of the house as long as she did not remarry. Her

husbands executor made the agreement largely in deference to the deceaseds clearly

expressed wishes. But P was also asked to pay one pound per year to the executors under the

agreement. P had provided consideration for the promise.

In the case of Merritt v Merritt (1970), a husband (H) left his wife (W) and moving

out of the house that was in their joint names, and went to live with another woman. H and W

later met to discuss their financial arrangements for the future. H promised to pay 40 pound

per month to W, and they had written an agreement that in consideration of Ws paying off

the mortgage on their jointly-owned house, H would transfer the ownership to W but he

failed to do that. Therefore, W able to sue H because court held that they had agreement

which wrote by H, thus consideration was made.

Performance of An Existing Duty Of Commercial/ Public

In the case of Stilk v Myrick (1809), the facts arose out of a return voyage from

London to the Baltic, during which two sailors had deserted and the captain was unable to

find replacements for them. He therefore promised to divide the wages of the two deserters

amongst the remaining crew members in exchange for them sailing the ship short-handed on

the home voyage. Largely on the grounds of public policy, to deter extortion, the action

brought by the one of the crew, to enforce this promise, failed. An alternative reason for the

decision was that the crew members provided no consideration for the captains promise, as

they were only fulfilling their existing duty by sailing the ship.

In the case of Collins v Godefroy (1831), P was subpoenaed to give evidence on Ds

behalf at a trial in which D was involved. D was promised to pay him six guineas that is 6.30

pound. But P was unsuccessful in his attempt to enforce Ds promise, as he failed to provide
 consideration for his promise. P was under a legal duty to attend court because of the

subpoena. In general principle, person that does not provide consideration for another

persons promise by simply performs an existing duty.

2. Consideration

In contract law consideration is concerned with the bargain of the contract. A

contract is based on an exchange of promises. Each party to a contract must be both

a promisor and a promisee. They must each receive a benefit and each suffer a detriment.

This benefit or detriment is referred to as consideration.

Can The Performance Of Existing Duty Amount To Consideration

What is performance of existing duty? Its means that makes a promise to another

person in order to exchange for the others promise or performance of something that the other

person is already obligated to do. Can the performance of existing duty amount to

consideration; and how much does it will amount to consideration?

Therefore, in initially we should understand what is consideration is about.

Consideration is a benefit to a promisor but it is a disadvantage to the promise or maybe for

both. In the case Currie v Misa (1975) ,it was stated that " consideration existed when there

was some right, interest, profit or benefit accruing to one party, or some forbearance,

detriment, loss or responsibility, given, suffered or undertaken by the other one." Both parties

must agree for a contract. For example, you cut my hair and I give you RM5 for the cutting

service. I give you my car and you give me RM1000. Existing duty is that a promisee is

already bound to perform an existing legal duty.

Consideration

What is consideration means by? The words consideration" are used in the law of

contract in a technical way. Consideration does not carry its common meanings of kindness

and thoughtfulness to others. Indeed, such features are not recognized by the law, since they

are not valuable". For example, the word is used in the following sense: Will you do this

thing for me?" Answer: Only for a consideration". In other words, I will not do it for

nothing, but only in return for what you give me. Besides that, the consideration must be in

the situation of sufficient and it is no need to be adequate as long as both parties be in

agreement, in the case of Chapell v Nestle (1959) 2 All ER 701, HL shows that the things that

returned by Nestle to Chappell although are small in value, but those still can be a good

consideration. A consideration must be something of value, something you wouldnt

ordinarily have but for the agreement, it may consist of an action such as the handing over of

goods in a retail shop, or the money for them; or else it may be consists of a promise. For

instance, if someone buying something and pay immediacy without delay that is called

executed consideration. It was because an executed consideration consists of a completed

action. Moreover, the other type of consideration is an executory consideration. It is

executory when one promise is made in return for another. For example, a promise in return

for a promise; when X agree to sell Y a car and Y promises to pay RM2, 000 for it. A

consideration is executed when a promise is made in return for the performance of an act. For

example, X offers RM 100 to anyone who finds and returns his camera which he has earlier

lost. But Y had finds and returns the camera in response to the offer. Ys consideration for

Xs promise is executed, and only Xs liability remains outstanding. The last consideration is

the past consideration; a past consideration consists of something that had happened. A
subsequent promise to pay for its unenforceable. A past consideration is a good

consideration; it is because after the performance for a duty, the past consideration can be

appeal in the Malaysia courts. For example, when A promise B to give B a goods but at the

end, B din get anything from A. Therefore B can sued A that A do not fulfill his or her

promise. This can be happen in Malaysian Law, act prior to the promise would be sufficient

to constitute consideration even though it is clearly past.

Performance Of Existing Duty For Domestic Or Social

In the case Thomas V Thomas (1842) 114 ER 330, a testator, shortly before his death,

had expressed the wish that his widow should have the use of his house during her lifetime as

long as she did not remarry. His executor agreed to allow her to occupy the house in return

for her promises to pay 1 pound per year and to keep the premises in good condition. The

executor as a defendant subsequently refused to allow her to have the house. Since the widow

paid rent, so there is something is value and kept the premises in good condition, therefore

the contract is enforceable.

Performance Of Existing Duty For Commercial And Public

Base on the traditional perception, performance of an existing duty should be

constitute a consideration in this case Stilk v Myrick (1809) 170 ER 1168, KB. From the case

itself, there is 11 seamen on the ship but 2 of the seamen were deserted their ship during their

voyage. Therefore, the duties of those 2 seamen have to find theirs replacement to replace

their jobs. Since its hard to find replacement for the 2 deserted seamen, as a result the

captain offer the rest of the ship seamen share the wages of the 2 deserted seamen equally as

it was safety back to London. At last they already safety ship back to London but the 9
seamen was get nothing. Because the captain did not fulfill his promise as what his mention

on the ship. Therefore the 9 seamen feel unsatisfied that what captain had threat them, so they

sue the captain. But the court judgment stated that the 9 seamen is based on the work of

existing obligations, shipped back to London, and promised to take all emergency needs.

Therefore, captain need not provide additional funding commitments, any

consideration. Therefore he is entitled to nothing. Therefore the captain could not be sued.

In my opinion, I will prefer to agree that performance of an existing duty can constitute

consideration.