CONSIDERATION, ESTOPPEL AND INTENTION (WEEK 4 - LECTURE 5)
Enforcing Promises
No legal system enforces every promise or agreement. Which ones does the law
enforce, and why?
Three Routes to Enforcement
1. Consideration, (but what does this mean?)
2. Deeds,
3. Estoppel.
Consideration
The doctrine of consideration is English law’s principal means for determining which
promises are enforceable.
What is consideration?
Two flawed definitions:
1. Consideration = a reason for enforcing a promise (Atiyah)
i. Duxbury calls this flawed because the reason is not just any
reason but a particular set of facts so that in modern terms it is
now untrue.
2. ‘A valuable consideration, in the sense of the 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’ (Lush J in Currie v Misa)
i. Duxbury argues this is also wrong…
COMBE V COMBE
The parties were getting divorced. Mr Combe promised to pay Mrs Combe £100 a
year following the divorce. When the divorce was finalised, Mrs Combe didn’t apply
to the Divorce Court for maintenance from Mr Combe. Mr Combe didn’t pay the
money he promised. Mrs Combe sued, claiming, inter alia, that her forbearance
from claiming maintenance was consideration for Mr Combe’s promise
Held: no consideration was given for Mr Combe’s promise.
Why? Though Mrs Combe’s not seeking maintenance was a benefit to Mr Combe
and a detriment (loss; did not enforce the promise) to Mrs Combe, Mr Combe had
not requested this in return for his promise. No conditions were included in the
promise other than him saying ‘I will pay you £100’; had he asked Mrs Combe for
something in return (I.E CONSIDERATION), then she could have sued and won.
, Exchange
There is consideration when the promisor asks for, and gets, something in return for
his promise: I promise X if you promise/do Y.
Where no consideration is given, we call it a bare or gratuitous promise (Combe v
Combe).
Earning Enforcement Rights
A promise isn’t legally enforceable simply by virtue of the promisor
wanting/intending it to be
Consideration means the promisee must earn or pay for the right to enforce the
promise.
Adequacy
It doesn’t matter what the promisee gives the promisor in return for the promise
so long as he gives something—consideration needn’t be adequate.
Why? THE SUBJECTIVITY OF VALUE. (I.E. not everyone values something in the
same way).
Chappell v Nestlé. (an important English contract law case, where the House of
Lords confirmed the traditional doctrine that consideration must be sufficient but
need not be adequate).
Nominal consideration: what someone asks for back can be trivial
Past consideration
Consideration requires something be given in exchange, so something that was
given to the promisor before the promise can’t count.
Eg: I help you move house and afterwards, in gratitude, you promise to help me
next time I move—my help with your move wasn’t given in return for your
promise to help me
The exception: where I helped on the shared understanding that you would do
something for me in return, but with the content of the quid pro quo to be settled
later
Enforcing Promises
No legal system enforces every promise or agreement. Which ones does the law
enforce, and why?
Three Routes to Enforcement
1. Consideration, (but what does this mean?)
2. Deeds,
3. Estoppel.
Consideration
The doctrine of consideration is English law’s principal means for determining which
promises are enforceable.
What is consideration?
Two flawed definitions:
1. Consideration = a reason for enforcing a promise (Atiyah)
i. Duxbury calls this flawed because the reason is not just any
reason but a particular set of facts so that in modern terms it is
now untrue.
2. ‘A valuable consideration, in the sense of the 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’ (Lush J in Currie v Misa)
i. Duxbury argues this is also wrong…
COMBE V COMBE
The parties were getting divorced. Mr Combe promised to pay Mrs Combe £100 a
year following the divorce. When the divorce was finalised, Mrs Combe didn’t apply
to the Divorce Court for maintenance from Mr Combe. Mr Combe didn’t pay the
money he promised. Mrs Combe sued, claiming, inter alia, that her forbearance
from claiming maintenance was consideration for Mr Combe’s promise
Held: no consideration was given for Mr Combe’s promise.
Why? Though Mrs Combe’s not seeking maintenance was a benefit to Mr Combe
and a detriment (loss; did not enforce the promise) to Mrs Combe, Mr Combe had
not requested this in return for his promise. No conditions were included in the
promise other than him saying ‘I will pay you £100’; had he asked Mrs Combe for
something in return (I.E CONSIDERATION), then she could have sued and won.
, Exchange
There is consideration when the promisor asks for, and gets, something in return for
his promise: I promise X if you promise/do Y.
Where no consideration is given, we call it a bare or gratuitous promise (Combe v
Combe).
Earning Enforcement Rights
A promise isn’t legally enforceable simply by virtue of the promisor
wanting/intending it to be
Consideration means the promisee must earn or pay for the right to enforce the
promise.
Adequacy
It doesn’t matter what the promisee gives the promisor in return for the promise
so long as he gives something—consideration needn’t be adequate.
Why? THE SUBJECTIVITY OF VALUE. (I.E. not everyone values something in the
same way).
Chappell v Nestlé. (an important English contract law case, where the House of
Lords confirmed the traditional doctrine that consideration must be sufficient but
need not be adequate).
Nominal consideration: what someone asks for back can be trivial
Past consideration
Consideration requires something be given in exchange, so something that was
given to the promisor before the promise can’t count.
Eg: I help you move house and afterwards, in gratitude, you promise to help me
next time I move—my help with your move wasn’t given in return for your
promise to help me
The exception: where I helped on the shared understanding that you would do
something for me in return, but with the content of the quid pro quo to be settled
later
