It is thus clear that even at common law, consideration cannot be regarded as the conclusive test of a deliberate mind to contract:

whether there is such a mind must always be the decisive and overriding question. In any system of law, consideration may be introduced as evidence of that deliberate mind; but it cannot, even under the common law, be decisive: the only question is whether it can be put on a pedestal as the sole test. Lord Wright.

Consideration
Lord Dunedin defined consideration in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd (1915). An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable. Unlike the definition given in Currie v Misa it does not speak of benefit and detriment but of an act or a return promise. Why this change in the formulation? In some types of contract, the promise is not exchanged for any return undertaking by the promisee, but is to operate if the promisee performs a certain act, which he may or may not do ex. Unilateral Agreements. For example a person selling his house usually promises his estate agent, that if the agent introduces a person who buys the house, the seller will pay the agent a commission, but the agent does not (for obvious reasons) promise that he will find a buyer, nor does he necessarily promise that he will even look for one. The consideration for the sellers promise is the agents act of introducing the purchaser (see further pp 219220), and here there is no difficulty over describing the act as a benefit to the promisor and a detriment to the promisee

Thomas v Thomas (1842) 2 QB 851, per Patteson J Consideration means something which is of some value in the eye of the law, moving from the plaintiff; it may be some detriment to the plaintiff or some benefit to the defendant, but at all events it must be moving from the plaintiff. Rules of consideration There are various rules governing the law of consideration: 1. The consideration must not be past. 2. The consideration must move from the promisee 3. The consideration must be sufficient but need not be adequate. 4. An existing public duty will not amount to valid consideration. 5. An existing contractual duty will not amount to valid consideration. 6. Part payment of a debt is not valid consideration for a promise to forego the balance.

Types of Consideration 1. Consideration is called "executory" where there is an exchange of promises to perform acts in the future, eg a bilateral contract for the supply of goods whereby A promises to deliver goods to B at a future date and B promises to pay on delivery. If A does not deliver them, this is a breach of contract and B can sue. If A delivers the goods his consideration then becomes executed. 2. If one party makes a promise in exchange for an act by the other party, when that act is completed, it is executed consideration, eg in a unilateral contract where A offers 50 reward for the return of her lost handbag, if B finds the bag and returns it, B's consideration is executed. 3. If one party voluntarily performs an act, and the other party then makes a promise, the consideration for the promise is said to be in the past. The rule is that past consideration is no consideration, so it is not valid and cannot be used to sue on a contract. For example, A gives B a lift home in his car. On arrival B promises to give A 5 towards the petrol. A cannot enforce this promise as his consideration, giving B a lift, is past. Where a promise is made subsequent to and in return for an act that has already been performed, the promise is made on account of a past consideration.

McArdle (1951) A wife and her three grown-up children lived together in a house. The wife of one of the children did some decorating and later the children promised to pay her 488 and they signed a document to this effect. It was held that the promise was unenforceable as all the work had been done before the promise was made and was therefore past consideration. Mills v. Wyman 3 Pick. 207 (Mass. 1825). (US case) Facts: The defendants son got very sick and was taken in by the plaintiff. The son was in the care of the plaintiff for 15 days until he died, and when the defendant learned of this he promised

to repay the plaintiff for his help. The plaintiff sued to recover the promised money, but was nonsuited. The plaintiff appealed. Eastwood v Kenyon(1840) A young girls guardian raised a loan to educate her and improve her marriage prospects. After her marriage, her husband promised to pay off the loan, but the guardian was unable to enforce this promise because his consideration (in bringing up and financing the girl) was past. His actions were not requested by the promisor and could not have been performed in response to the later promise. The husbands moral obligation to pay could not be converted into a legal obligation by his promise. Exceptions to General rule

Common Law
The exact order of events as recounted is NOT decisive in all matters as exceptions have occurred. if the court is satisfied that the promisors promise and the promisees past actions are, in fact, part of the same overall transaction. The Doctrine of Implied Assumpsit can come in which is an undertaking either express or implied, to perform a parol agreement. An implied assumpsit is where one has not made any formal promise to do an act or to pay a sum of money to another, but who is presumed from his conduct to have assumed to do what is in point of law just and right; for, 1st, it is to be presumed that no one desires to enrich himself at the expense of another; 2d, it is a rule that he who desires the antecedent, must abide by the consequent; as, if I receive a loaf of bread or a newspaper daily sent to my house without orders, and I use it without objection, I am presumed to have accepted the terms upon which the person sending it had in contemplation, that I should pay a fair price for it; 3d, it is also a rule that everyone is presumed to assent to what is useful to him. Quantum Meriut legal maxim which is Latin, literally meaning 'as much as he has deserved' Lampeigh v Braithwait (1615).
If the promisor has previously asked the other party to provide goods or services, then a promise made

after they are provided will be treated as binding In Pao On v Lau Yiu Long (1980), the Privy Council opined that a claimant must show that: (a) he performed the act at the promisors request; (b) it was clearly understood (implied) at the time of the request that he would be rewarded for the act; and (c) the eventual promise is one which would have been enforceable if it had been made at the time of the act. The parties agreed to exchange shares in their companies. P also agreed not to sell 60% of the shares it received for a year to avoid triggering a fall in their value.

In exchange, L agreed to buy back those shares at $2.50 each by the end of the year. When P realised that this was an inferior deal if the value of the shares rose beyond $2.50, P refused to proceed with the contract unless L agreed to give a guarantee by way of indemnity (ie L would only buy back if the shares fell below $2.50). As it turned out, this modification did not increase Ls liability because of a dramatic fall in the value of the shares. Nevertheless, L refused to honour either scheme of protection for P, alleging the buy -back to be non-existent and the indemnity to be unenforceable for lack of consideration and voidable for duress. The court found no duress (see 8.4.2) and that Ps promise not to sell the shares for a year was valid consideration because it was given at Ls request with the common intention that L should protect P against a drop in value. This intention survived through the cancellation of the buy-back agreement. Ls subsequent promise may be regarded either as evidence of the amount payable (as in In re Caseys Patents (1892)), or as a new agreement in the nature of a compromise settling the amount payable (as in Horton v Horton (No 2) (1961)). If something is done in a business context and it is clearly understood by both sides that it will be paid for, then past consideration will be valid. As seen in Casey's Patents [1892] SIMPLE VERSION
In short, where I ask you to do something (Y**) which you do, and I thereafter promise you X**, the court could imply an understanding at the time of my request that you would be paid for doing Y**. If so, my later promise of X** can be backdated to the time of my request as consideration for your performance of Y**, which in turn becomes valid consideration for my backdated promise.

Statutory Provisions
Parliament has also mitigated the rigours of the past consideration rule by providing that a preexisting debt or liability is good consideration for a bill of exchange (Bills of Exchange Act 1882 s 27(1)(b)), and that a debt is deemed to have accrued on and not before the date of the debtors acknowledgement of the debt (Limitation Act 1980 s 27(5)). Under s27(1) it is provided that any antecedent debt or liability is valid consideration for a bill of exchange. For example, A mows B's lawn and a week later B gives A a cheque for 10. A's work is valid consideration in exchange for the cheque. REFLECTION The liability here may be better understood as arising in unjust enrichment (see 1.6.2), rather than contract. The promisor has received the benefit of the promisees requested performance: the benefit was at the promisees expense and was unjustly so (the promisor knew that the promisee was not acting gratuitously). This analysis would allow the remedy to be measured by the objective value of the benefit received, rather than by the amount promised as it now is. CONSIDERATION MUST MOVE FROM THE PLAINTIFF/ PROMISEE

The person who wishes to enforce the contract must show that they provided consideration; it is not enough to show that someone else provided consideration. The promisee must show that consideration "moved from" (ie, was provided by) him. The consideration does not have to move to the promisor. If there are three parties involved, problems may arise. See: Price v Easton (1833) Easton made a contract with X that in return for X doing work for him, Easton would pay Price 19. X did the work but Easton did not pay, so Price sued. It was held that Price's claim must fail, as he had not provided consideration. Where there are joint promisees and only one has given consideration, the other can still enforce the promise (Coulls v. Bagot's Executor and Trustee Co. Ltd (1967)). Mr Coulls entered into a contract to allow ONeil Constructions to quarry part of his land. In exchange, ONeil was to pay royalties to Mr Coulls and his wife as joint tenants. Following Mr Coulls death, his executor (Bagots) sought to determine whether ONeil was required to pay the royalties to the estate or to Mrs Coulls. A majority of the High Court held that the royalties were payable only to the estate on the ground Mrs Coulls was not a party to the contract. In discussing the issue of consideration, a majority of judges (concurring with Barwick CJ) concluded that where a promise is made to joint promisees then either promisee can enforce even though consideration only moved from one.