must usually be made before the contract is completed. In this way, the consideration is a quid pro quo for a promise that is made which can then be enforceable under the contract.
Unit 7, Lesson 2, Exercise E 1.31 Part 3
OK then. An important concept is that of past consideration. What do I mean by past consideration? As you can see from Roscorla v Thomas, there was a contract for the sale of a horse. At the time the contract was made, the condition the horse was in was not an issue. Looking at it another way, the consideration for the original sale was the sum of money Roscorla paid for the horse. Subsequently, when Thomas promised that the horse was sound, Roscorla already owned the horse and did not offer anything in return for this promise. In legal terms, there was no enforceable contract.
Let’s look at another example of this. Say X rents
a flat from Y. While living in the flat X redecorates it. After all the work has been completed Y agrees to pay X a sum of money for the work done. Y then breaks this promise to X. The contract is unenforceable because the promise was made after the decorating was completed. The point is that the consideration must be either for something to be done in the future, known as an executory contract, or for something that is actually completed, known as an executed contract.
For example, Y pays X money to decorate the flat next week. If X fails to do the work the contract is enforceable because the agreement was made and the consideration established before the work was carried out. This is an executory contract. Or, if Y agrees to pay X a sum of money when the decoration is completed and X carries out the work satisfactorily, the contract has been carried out or executed. So this is an executed contract. The important point is that the consideration must be current and must not be used up before the promise is made.
Unit 7, Lesson 2, Exercise F 1.32 Part 4
Now … er … let’s see … oh dear, I see we’re running short of time … but perhaps I should just say something about past consideration. The basic
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rule is that past consideration is insufficient to form a contract. One exception is the later promise. If a later promise can be linked to the initial request, the consideration for the later promise can be treated as all part of one agreement.
The old case of Lampleigh v Braithwaite illustrates this. What this case demonstrates is that the court can consider later promises.
Braithwaite killed someone and then asked Lampleigh to get him a pardon. A pardon is when the monarch forgives someone for a crime that has been committed. Lampleigh successfully petitioned the king and Braithwaite was granted a pardon. Braithwaite then promised to pay Lampleigh for what he had done. However, Braithwaite broke his promise and did not pay Lampleigh. What the court held was extremely significant. Although Lampleigh’s consideration was past, as he had already got the pardon, it could be implied that at the time of Braithwaite’s initial request to get a pardon there was an understanding that Lampleigh would be paid.
Also, no consideration is needed when there is a modification or change to the existing contract. This is highlighted in the case of Williams v Roffey Brothers. I’ll give you the citation so you can look it up … It’s [1991] 1 QB 1.
Now … oh dear … I was going to mention the other rules of consideration. These are … uh … quite complicated but … uh … time is moving on. So instead, I’m going to …
Unit 7, Lesson 3, Exercise A 1.33 1 obli'gation
2 in'tention 3 'detriment 4 ex'ecutory 5 per'formance 6 'contract 7 'doctrine 8 suf'ficient 9 'promise
10 en'force 11 consider'ation 12 'privity
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