Welcome again ladies and gentlemen, this of course will serve as continuation of the last post, you can click on this link or link below or search through the home page of this site to get to the first post, where we examine the fact and decision in Williams v. Roffey Bros Today.
We will also examine the facts and decision in Williams v Roffey Bros [1990] 1 All E.R. 512 , and state whether in opinion if it modified the rule in Stilk v. Myrick (be 1809)1 Camp. 317
A valuable consideration in the eyes of the law as aptly captured in Currie v Misa “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”. Consideration must be sufficient. In Harris v Watson here a group of sailors took advantage of the peril in the voyage to make extortionate demands Lord Kenyon based his decision on economic duress and public policy without beckoning at sufficiency of consideration.
When in 1809 the seminal case of Stilk v Myrick came before the King’s Bench, Lord Ellen Borough took a fundamental different approach. In that case, a pair of sailors deserted a ship travelling from London to Baltic. The captain of the ship, having unsuccessfully recruited another crew member at Sweden, promised to divide the wages of the deserters among the remaining crew members. When he failed, this action was brought against him. Lord Ellen borough held that the promise of extra wages was void for want of consideration and states inter According to Purchas LJ in the case herein stated above, “there was clearly a commercial advantage to both sides from a pragmatic point of view in reaching the agreement “. The rationale is not farfetched as the defendants succumbed to this agreement in order to escape a penalty clause in the main contract and readily waived their legal contractual rights of an existing contract owed to them in quest to escape this penalty in absence of fraud, duress or misrepresentation.
Similarly, Russell LJ held that “a gratuitous promise, pure and simple, remains unenforceable unless given under seal. But whereas this case, a party undertakes to make a payment because by so doing it will gain an advantage arising out of the continuing relationship with the promise the new bargain will not fail for want of consideration”. Prof. Chioma k. Agomo thus submits that at least two reasons are discernible from the judgments. Firstly, there may be a commercial advantage to both sides from a pragmatic view point in reaching the agreement. Secondly, equity or justice demands that the courts should be more ready to reflect the intention of the parties to the contract especially where there have equal bargaining powers.
Therefore, the idea that consideration must move from the promisee does not necessarily mean that the promisee must suffer some detriment14 this made the counsel for the defendants erroneously submit that since the promisee did not suffer any detriment, consideration did not move from him. The plaintiff conferred a benefit on the defendants by performing that act which without the extra promise would not have been performed, a situation which would have created a bigger problem for the defendants.
In line with the foregoing, it is safe to submit that although the decision in Williams v Roffey Bros has indeed modified and mitigated the harshness of the decision in Stilk v Myrick, the point to be noted therefore is that irrespective of the amelioration in Williams v Roffey Bros, it is still settled at least in common law that an existing contractual obligation owed to a party does not suffice as a sufficient consideration for a new promise. Therefore, the decision in Williams v Roffey Bros can be regarded as an exception to the general rule in Stilk v Myrick. Thus, this refines and limits the application of the principle in Stilk v Myrick but leaves it unscathed.
Leave a Reply