N.B. This article is particular to Nigeria.
Performance of an Existing Duty as Consideration in Contract
Whether or not performance of an existing duty will constitute good consideration may largely depend on the nature of that duty. There are 3 basic types:
1. Duty Imposed by Law
Generally, a party cannot enforce a promise made to him in return for his performance of a public duty. Since he is already under an obligation to discharge the existing public duty imposed on him by law, enforcing such a promise made to him would be contrary to public policy since it might encourage extension by public officers.
Thus, in (Collins v Godefroy), the plaintiff has been subpoenaed to give an evidence on labour of the defendant’s case. The defendant Godefroy was keen to ensure that the plaintiff shows up to give evidence, and therefore promised to pay him 1 Guinea per day. After 6 days that he has been attending court and not being called to give his evidence, he demanded for the accumulated amount of 6 days which the plaintiff had promised.
The court held that Collins was under a public duty to attend court due to the subpoenaed. Therefore a promise to give him any remuneration is a promise without consideration.
Also read: Consideration in contract
However, if the plaintiff acts or promises to act more than his duty under the law, then this would constitute consideration.
Thus, in (Glassbrook Bros v Glamoungan County C0uncil )
The owners of a coal mine at which there was a strike applied to the local police authority to station a force of policemen at the mine to protect the mine from strikers. The police were willing to protect and control the situation by a mobile force which would be rushed to the mine at the first hint of trouble. But the manager wanted police to be stationed at the coal mine agreeing to bear the expenses or agreed to pay for the additional service. At the end of the strike the police requested for the fee but the defendants refused to pay arguing that the police were acting under their public duty.
The court held that by providing officers stationed at the coal mine, the police had gone beyond their public duty. Therefore, there is a valid consideration and the contract was enforceable. See Also (Ward v. Byham)
2. Duty imposed by contract with the promisor
If a party to a contract simply promises to carry out or carries out an already existing contractual duty to the defendant, he has furnished no consideration for any fresh promise that might have been made by the defendant.
In (Stilk v Myrick), two section dissected a ship in the course of a voyage between London and the Baltic. The ship’s captain who could not find substitute promised the rest of the crew extra wages if they could work the ship back home. The captain never made the extra payment promised.
The court held that there was no consideration for the promise to make the extra payment. Under the seamen’s contract, they were obliged to sail the ship under these circumstance and so the suit was dismissed.
However, like the way it is in duty imposed by law, also, where the plaintiff acts or promises to act in excess of his contractual obligation to the defendant, it can be said that a new contract has been entered into between the parties, and the extra performance by the plaintiff can stand as a valid consideration for the extra promise of the defendant.
Thus, in (Hartley v Pronsonby), the circumstance were similar to Stilk v Myrick, but the ship was so short-handed that it would have been extremely dangerous to sail the ship without additional crew. 17 out of 36 crew of the ship deserted. Pronsonby (the defendant) then promised to pay the remaining crew extra money to sail back which they did
The court held in this case that they could enforce the promise. Their agreement to sail the ship under those circumstances amounted to them entering into a new contract with the captain.
3. Duty imposed by contract with a third party
Where parties are already into a contract with each other i.e. they both owe themselves contractual obligation, and a third party comes in to make a promise of reward for a party to perform his obligation under the contract, the party can rely on the performance of that act as consideration for the fresh promise made to him by the third party.
Unlike the two earlier situations in which the law regards the performance of the already existing duty as no consideration, in this third situation the courts have consistently held that there is consideration.
Read also: Contract in law
Thus in (Shadwell v Shadwell), the plaintiff had already entered into a contract to marry one Nicholl. He then received a letter from his uncle congratulating and promising to pay him #150 yearly during his (the defendant) life time and until the plaintiff’s income is increased to 600 gram. When the uncle died, the plaintiff sought to recover outstanding amounts from his estate.
The court gave the judgment in favour of the plaintiff that there was good consideration for the promise by the Nephew’s marriage to Nicholl.
The court’s attitude to this category of duty is promised on the fact that the third party has special interest in the performance of the contract and that the party who is induced by the promise of the third party to perform has suffered detriment by limiting his freedom in that he might for good reason want to repudiate the contract and pay for damages.
Contributed by: Adedokun Samuel