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Performance of an Existing Duty in Itself Is Not a Sufficient Consideration

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Submitted By RachelCN
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The Performance of an existing duty is not in itself sufficient consideration to legally enforce a promise.

Valuable consideration is the essential element to the formation of a valid contract. In Currie v Misa, Lord J stated that a valuable consideration, in the sense of law, may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. In other words, it is ‘the element of exchange in a contract’ or ‘the price paid for a promise’. Performance of an existing duty is one of the general rule of valid consideration. Where a promisee already owes the promisor a legal duty, then in theory performing the duty should not in itself be consideration. Existing duties fall into various categories which are public duty, contractual duties to the promisor and contractual duties to a third party. Where a person is merely carrying out duties they were obliged to perform such as police officer protecting citizens or a jury listening to the evidence, it cannot amount to consideration for a promised award. In Collins v Godefroy, the defendant promised to pay a fee to the plaintiff who had been summoned to give evidence in a court action. It was held that he was obliged to give the evidence. Hence, doing so could not be consideration. However, where a person is under a public duty, but does something goes beyond what they are bound to do under that duty, that extra act can amount to consideration. As in the case Glasbrook Brothers v Glamorgan City Council, the defendants were the owners of a coal mine who promised to pay police for protection during the strike. After the strike, they refused to pay claiming they were obliged to give protection. The police officers brought an action against the owners for the payment, arguing they did more than what…...

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