10.2 SPINELESSCOWARDS


The devastated widow of the train guard branded the two youths found guilty of causing her husband’s tragic death ‘spineless cowards’ as they were bundled into a prison van to start their sentences for manslaughter. Philomena Scott added that the two-year jail term they were each given was ludicrous and pathetic. She accused the defence of fluffing up the evidence in order to obtain a shorter sentence. The two youths claimed they were merely taking part in a prank which ‘got out of hand’. They hurled massive slabs of concrete


onto a railway line from a bridge when a train was passing underneath. One of the concrete slabs smacked into John Scott’s head when he was working in the guard’s van. He was killed instantaneously. The judge accepted that the boys did not intend to cause Mr Scott’s death but their actions were unlawful and reckless. They had however shown considerable remorse about what they had done. Mrs Scott described the judge as a ‘complete imbecile’ and vowed that she would campaign as long as it took to get justice for her husband.


7.4 Student C


Past consideration


Past consideration is consideration that was already provided before the promise was ever made. In a bilateral contract, the consideration must be executory or executed. Executory consideration is where at the time the promises are made no performance of the contract has been undertaken, but the parties are legally obliged to carry out the terms of the contract. Executed consideration occurs in a unilateral contract where the promise is in exchange for a performed act. The case of Stilk v Myrick (1809) 2 Camp 317 provides a good illustration of where consideration has already been provided before the promise was made. The sailors had already agreed to work on the ship before the captain promised them extra money to sail the ship back to port. In Roscorla v Thomas (1842) 3 QB 234 the promise that the horse was ‘sound’ had been made after the horse had been sold.


7.4 Student D


Practical benefit as consideration


In some circumstances the court will accept that what appears to be past consideration can create a binding contract if it provides some practical benefit.


In Williams v Roffey Bros [1991] 1 QB 1, CA the court held that the performance of an existing contractual obligation can be taken as consideration where there is some practical benefit to the other party. In this case the builders carried out their existing contractual duty and as a result prevented the implementation of a penalty clause. The court held that avoiding having to pay the penalty clause was a practical benefit. However, the case is contentious and the courts have not always followed this ruling. In R v Selectmove Ltd [1994] BCC 349 the Inland Revenue (UK tax office) wanted to wind up a company for non-payment of debts. The company offered to pay the debts in instalments and the Inland Revenue at first agreed but subsequently went back on its promise. The court held that the company had offered no consideration in return and so the Inland Revenue was entitled to break this promise.


105


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