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Wiss, J (2003), Consideration
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Consideration [952 words]
General Comments: A clear and concise answer which deals with all of the major points
and garners support from a range of well utilized case law and academic viewpoint. Your
evaluation of the purported unfairness/impracticality of the past consideration rule was
very well done. You promulgate a number of astute observations and express these
cleverly, inter alia, via thecase of McArdle (although it was the son’s wife who paid for
the decorations)
(Grade 2:1)
Not every promise made is enforceable in law by the Courts, as this would clearly be
impractical. A promise backed up by consideration gives a reason for enforcement
[Atitah, p.200 REF1]. [28] (Consider using ‘supported by’ instead)
Consideration can be “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” [Currie v Misa 1875 REF2]. There need not be a benefit or detriment to both parties
– it need only be that one party has a benefit or detriment and the other accepts it
[Pollock, p.200 REF3]. [56]
Further, the consideration given by one party does not have to be relative to the promise
given by the other – “if a promisor gets what he asks for in return for his promise, he has
received sufficient consideration and is bound”, irrespective of how much or little he
asks. [Smith p.209 REF 4, & Lord Somervell REF 5] [49] 
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Consideration may be executory i.e. a promise itself, or executed i.e. an act [Unit 4, p.118
REF 6]
(Consider fleshing these out a little). Sufficient consideration, coupled with a valid
promise incorporating an offer and acceptance, and an intention to create legal creations,
gives rise to a binding contract. Where there is no consideration, the law safeguards
against a floodgate of claims by insisting upon such promises being made in the form of a
deed [Unit 4, pp.112-113 REF 7]. [64]
The rule ‘past consideration is no consideration’ stems from the case of Re McArdle
(1951) [REF8]. In that case, a man left a house to his children and one of those undertook
some decorating. The other children subsequently signed a document agreeing to
contribute to the costs. It was held that the agreement was not enforceable, as it was not
supported by consideration. Consideration had to be co-extensive with the promise for
which it supported, not subsequent [Roscorla v Thomas 1842 REF9]. [73] 
There are, arguably, exceptions to the rule. In Lampleigh v. Brathwait (1615) [REF10],
Brathwait had killed a man and asked Lampleigh to meet the King and obtain a pardon
for him, which Lampleigh did. Brathwait subsequently promised Lampleigh £100 for his
services, but when Brathwait did not honour this promise, Lampleigh sued him. The court
held that Brathwait's prior request to Lampleigh contained an implied promise to pay him
a reasonable sum for his services, and that the subsequent mention of the £100 was
merely fixing the sum. The court treated the prior request and the subsequent promise as
part of the same transaction. [99]
The point can be clarified by a further case, Re Casey's Patents, Stewart v. Casey (1892)
[REF11].
In this case Casey had been the manager in working the patents of Stewart and
Charlton, who promised Casey a third share of the patents. Bowen L.J. said: "the fact of a
past service raises an implication that at the time it was rendered it was to be paid for,
and, if it was a service which was to be paid for, when you get in the subsequent
document a promise to pay, that promise may be treated either as an admission which
evidences or as a positive bargain which fixes the amount of that reasonable
remuneration on the faith of which the service was originally rendered. So that here for
past services there is ample justification for the promise to give the third share." [134] 
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Bowen LJ deliberately avoids the question of whether past consideration is no
consideration, and certainly does not attempt to “examine the whole state of the Law”.
He instead adds a requirement to reexamine the matter and see if it cannot be resolved
some other way. He finds that at the time the service was rendered there was an
implication it was to be paid for. This may have been from the value of the service, the
time and effort afforded, the relationship between the promisor and promisee, and what is
usual in such a situation. [95]
Consequently, to rely on the exception in Re Casey’s Patents, the son in Re McArdle
would not only have to prove that the other siblings had requested him to carry out the
decorating, but also prove that both parties understood that he was to be remunerated for
it. So, if the siblings had expected the son to do the improvements as a favour, perhaps
out of natural love and affection, he would not be entitled to sue them on the subsequent
promise to give him a specific sum. [83]  The son’s wife paid for the decorations, in
fact.
This raises the question of whether every act done should give rise to the type of
implication found in Re Casey. [19]
The matter is further clarified in Pao On v. Lau Yiu Long [1980] A.C. 614 [REF12], when it
was stated that subsequent renumeration can sometimes be consideration for the promise,
under certain circumstances. The act must have been done at the promisor's request, the
parties must have understood that the act was to be remunerated either by a payment or
some other benefit: and the consideration must have been legally enforceable had it been
promised in advance." [67] 
So, if McArdle’s son (it was his wife) , for example, wishes to rely on the principle in
Pao On, he must prove that;
the other siblings requested him to carry out the decorating
both he and the siblings understood that the siblings intended to pay the him for
his services and
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the payment is legally enforceable.
Clearly McArdle’s son (see supra) would not be able to use the exception on past
consideration. [64]
My opinion is in line with that stated by the Law Reform Committee, who recommend
the McArdle rule be abolished. [use neutral language unless you are asked to give an
opinion] Just because the promisor had already received the benefit of the promise,
should not enable him to break it [REF13]. If allowed to do so, the rule can produce unfair
results. The rule is a technicality allowing subsequent promises to be broken with no
recompense for the promisee. Further, it opens up the possibility of misunderstandings –
for example, a service is rendered where it is usual and reasonable for renumeration to be
given but none is formally agreed until afterwards, and that agreed afterwards cannot be
sued on. The criteria in Pao On protects this professional aspect of the problem but is not
extensive to all cases. [121]
References:
1.
Atiyah, P. S, Consideration in Contracts (1971) in Smith & Thomas/Smith J., A
Casebook on Contract (2000) p.200, Sweet & Maxwell, London.
2.
Currie v Misa (1875) L. R. 10 Ex. at 162 cited in Pollock, Principles of Contract
(13th Edition) p. 133, cited in Smith & Thomas/Smith J., A Casebook on Contract
(2000) p.200, Sweet & Maxwell, London.
3.
Pollock, Principles of Contract (13th Edition) p. 133, cited in Smith &
Thomas/Smith J., A Casebook on Contract (2000) p.200, Sweet & Maxwell,
London.
4.
Smith, J. C., Consideration need not be adequate but must be sufficient, Smith &
Thomas/Smith J., A Casebook on Contract (2000) pp.209 - 210, Sweet &
Maxwell, London.
5.
Lord Somervell of Harrow (p.213) speaking in Chappell & Co. Ltd v. Nestle Co.
Ltd House of Lords (1960) A. C. 87; (1959) 3 W. L. R. 168; (1959) 2 All E. R.
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701; 103 S. J. 561 in Smith & Thomas/Smith J., A Casebook on Contract (2000)
pp.209 - 210, Sweet & Maxwell, London.
6.
C: Past Consideration – p. 118 Unit 4, Consideration in W300: Law: Agreements,
Rights & Responsibilities Manual 1, The Open University, Milton Keynes
7.
A: What is Consideration? – pp. 111 - 112 Unit 4, Consideration in W300: Law:
Agreements, Rights & Responsibilities Manual 1, The Open University, Milton
Keynes
8.
Re McArdle (1951) Ch 669 cited in C: Past Consideration – p. 119 Unit 4,
Consideration in W300: Law: Agreements, Rights & Responsibilities Manual 1,
The Open University, Milton Keynes
9.
Roscorla v Thomas (1842) 3 Q. B. 234; 2 G. & D. 508; 11 L. J. Q. B. 214; 6 Jur.
929; 61 R. R. 216; 114 E. R. 496 in Smith & Thomas/Smith J., A Casebook on
Contract (2000) pp.206 - 207, Sweet & Maxwell, London.
10.
Lampleigh v. Brathwait Common Bench (1615) Hob. 105; Moore K. B. 866; 1
Sm. L. C. (13th Ed) 148; 80 E. R. 255 in Smith & Thomas/Smith J., A Casebook
on Contract (2000) p.204, Sweet & Maxwell, London.
11.
Re Casey's Patents, Stewart v. Casey Court of Appeal [1892] 1 Ch. 104; 61 L. J.
Ch 61; 66 L. T. 93; 40 W. R. 180 in Smith & Thomas/Smith J., A Casebook on
Contract (2000) pp.205 - 206, Sweet & Maxwell, London
12.
Pao On v. Lau Yiu Long [1980] A.C. 614; [1979] 3 W. L. R. 435; [1979] 3 All E.
R. 65 in Smith & Thomas/Smith J., A Casebook on Contract (2000) pp.233 - 234,
Sweet & Maxwell, London
13. Law Reform Committee 6th Interim Report, para 32, in Smith & Thomas/Smith J.,
A Casebook on Contract (2000) pp.207 - 208, Sweet & Maxwell, London
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