The Employers Choice Individual Assignment

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According to the legal dictionary, consideration is mean that something done or given by one party for
the act or promise of another. Consideration is an important element to create of contract and must
result from bargaining by the parties. Consideration have three types, there are executory, execute,
and past consideration.
Executory consideration is a contract can be made on the basis of exchange of promises into future
action, such as to pay for the goods in the future or to supply when the goods available . Executed
consideration is the promise becomes enforceable because the offeree has actually performed, dealing
will be ends immediately. Past consideration is something that has already performed, after promise to
pay for it cannot enforceable.

The Factor Affecting the Courts Decision in the Findings of Consideration

The orthodox view is that, performance of an existing duty should not constitute consideration.
Performance of an existing duty should or should not constitute consideration that is depending on the
case. To found out some of the cases, there have some support performance of existing duty should
constitute consideration and should not to constitute consideration.
Firstly, performance of public duty cannot be consideration for a promised reward , such as case of
(COLLINS v GODEFROY (1831)). The court is said that subpoena collins to appear at court is a legal
duty, so Collins doing so was not consideration that could support Godefroys promise . Whereas, if a
promise does more than promisee duty, promisee is entitles to claim on the promise , for example,
(GLASSBROOK v GLAMORGAN CC (1925)). Appellants manager refused to pay amount to police
that is police duty to protect and to prevent crime. The agreement was not void as being against public
policy. If the police had done more than their public duties demanded and need to be paid for police.
The court said that police have general duty, they need to keep the peace and prevent crime, so that
no was consideration, but need to pay extra for polices because the police have given them extra
protection.
Secondly, performance of contractual duty , this rule is the performance of existing contractual duty
owed to promisor, cannot be consideration for a new promise , for example (STILK v MYRICK (1809) ),
where the courts ruled that The promise of extra wages was not enforce because there was no
consideration for the promise. The remaining members of crew had done only what they were bound
by the original contract. They do not have to done extra work for the owner. So, owner need not to pay
crew extra wages .
To compare case with HARTLEY v PONSONBY (1857), there can see this case is to support should
constitute a consideration. In the case of HARTLEY v PONSONBY (1857) there have mentioned the
captain have had to promise the crew, if they would help to sail the ship back to England, then will give
the extra money to them. The crews have a responsibility to work on the ship, but they have not
responsibility to sail the ship back to England. The court was said that the person who promise to give
extra money for crews to sail ship back to England, then will give the crew extra money. The crews
reduce the risk to sail on and captain had no right to demand it .
And in case of WILLIAMS v ROFFEY BROS (1990), there have to shown performance existing duty
should constitute a consideration. Court of the appeal said that further promise might be consideration
for contractors offer of extra money to sub-contractor in order to prompt completion the refurnish . To
accepted this performance because performance of existing contractual duty provide consideration for
a new promise in situation there is no question of fraud or duress and the promisor receives practical

benefits .
As a valid consideration, consideration must not be past, performance must be legal and performance
must be possible . Besides that, consideration must move from the promisee but need not move to the
promisor , for example (TWEDDLE v ATKINSON (1861)), Guy promised the plaintiffs father to pay
plaintiff pound200 if the father have to pay plaintiff pound 100, the consideration is move to the
defendant, which mean is move from the plaintiff, plaintiff had not provided any consideration in return
for the promise to pay him pound 200, so the plaintiff to sue was no effect .
In addition, consideration must be sufficient but need not be adequate , such as (THOMAS v
THOMAS (1842) the widow can to have the house because the testator is wish to given to the widow,
$1 was valuable consideration moving from the widow, and upheld the contract. Constitute a valid
consideration is made by the contract between parties. Anyway, the best consideration and to be safe
side still is money .
In my opinion, consideration should constitute in performance of existing duty because that can in
return to the promise if the promises are legal and possible. As can to see the cases of related
consideration, in traditional view that is not support performance of existing duty should constitute a
consideration, and actually that is depend on the cases.
According to the cases between COLLINS v GODEFROY (1831) and GLASSBROOK v GLAMORGON
CC (1925), there have show that why some cases are support performance of duty should constitute a
consideration or not. As in case of COLLINS v GODEFROY (1831), it is not support performance of
duty should constitute a consideration because to subpoena witness is not a duty that is a performance
of public duty. Contrary, the cases of GLASSBROOK v GLAMORGON (1925) the appellants manger
should to pay for police because they require more protection for them, and the police have to give
them extra protected. The police have done some out of their duty, so need to pay extra money for
them.
In the case of STILK v MYRICK (1809) and HARTLEY v PONSONBY (1857), the different between this
two case, can see that the different because same is contractual duty but in case of HARTLEY v
PONSONBY (1857) defendant need to pay for crew extra money because of captain have to promise
the member of crew, if they can safe and sail the ship back to England then will give them extra money
and the crews was worked out of the contract work because 19 crews have to work 36 crew job.
Numbers of the crew work in the ship are not balance. They were worked out of their capable.
Whereas, in case of STILK v MYRICK (1809) owner was need not to pay the extra money for the
member of crew. That is because of the consideration, in the case of the STILK v MYRICK (1809) there
have not any consideration for the owner, if the crew have to done any extra work for the owner, maybe
the extra money will give them. And the crews only need to do two more crew only, the rest to cover
other two crews job; it is not really work hard.
In conclusion, as can see that in question, performance of duty should constitute a consideration
because the cases are shown and prove that performance of existing duty can to constitute a
consideration if the promise or offer is legal and possible. However, in my opinion, performance of
existing duty should constitute a consideration if that is legal and possible.

QUESTION 2
What are the general principles in the formation of a contract? What are the various forms of remedies
available for a breach of contract? Give examples with cases.

Introduction: What is Contract?

Contract is everything in written for the promise or offer. When signed the contract must binding what
the contract have written. If the contracts are not in legal, it may be revoked. For example, the person

signed the contract is not willing to sign, it may be revoked. Contract is to protect the promise, or offer.

General Principles in the Formation of a Contract

General principles in the formation of contract has an essential elements of binding contractual
agreement, there are offer, acceptance, consideration, and intention to create legal relations. These
elements must all be present in order to make a contract.
Offer is a promise, and can be acceptance or not, to be bound on particular terms . An invitation to
treat, inviting other to make offer, cannot be accepted as in form a contract, and also the person cannot
to extend the invitation to bound accept to any offer made to them, example (FISHER v BELL) display
the weapons in the window shop , although the weapon do not have to display the price on the weapon
but it is inviting customer offer to buy it . Offer to particular group of people , an offer is made to
particular people; it can be accepted by anyone, such as (CARLILL v CARBOLIC SMOKE BALL CO
(1893)) offer certain people to consume their product, and on the newspaper the state that have put the
$1000 in the bank if the medical inefficient to refund $100. Offer the chance to certain people who have
to consume these types of product . There are three types of offer, unilateral offer, bilateral offer, and
counter offer. These three types are very normally, and can to use it on our life. Unilateral offer is offer
to whole; the person who might not know each other. Bilateral offer is between two people and might
have to who the person want to sell or buy. Counter offer is the person who offer can to reject the
original price when the buyer bargains, to offer the new price.
Acceptance of an offer is a final and creates a contract, must suitable to the terms of the offer. Some of
the ways are considered as acceptance, there are form of acceptance, and communication of
acceptance. Form of acceptance is acceptance through the form case of words to express, either
spoken or written , even can be an action or conduct (BROGDEN v METROPOLITAN RAILWAY CO
(1877)) the court said that mere mental assent to the contract would not have been enough, but both
parties acted upon it were enough to show acceptance of its term from completion first
delivery. Communication of acceptance is must have communicated between offeror and offeree.
Silent is not to acceptance , in the case of (FELTHOUSE v BINDLEY (1863)). Although the uncle says
not voice out is consider accept it offer that is one side to conduct the promise. There was no contract
and no acceptance had ever taken place .
Consideration is an important element to create of contract and must result from bargaining by the
parties. Executory consideration is a contract can be made on the basis of exchange of promises into
future action, such as to pay for the goods in the future or to supply when the goods available .
Executed consideration is the promise becomes enforceable because the offeree has actually
performed, dealing will be ends immediately, and for example, buyer and seller are done the deal
immediately. Past consideration is something that has already performed, after promise to pay for it
cannot enforceable. For example, the offeree is consumed the offer and the offeror has already provide
the offer, after that promise to pay, but it to pay for unenforceable.
Intention to create legal relations have two agreements, there are domestic and social agreement, and
commercial agreement. Domestic and social agreement is presumption the parties do not intend to
create legal relations , the case of (BALFOUR v BALFOUR (1919)) no legal contract because husband
and wife did not intend legal for their agreement , and evidence can rebut the presumption , such as
(MERRITT v MERRITT (1970)), the husband has apply the BALFOUR v BALFOUR case to said that
husband and wife arrangement not being agreement. But the wife got the house because have
evidence to prove, such as husband wrote that agreement, wife to paid off the mortgage . Commercial
agreement is presumed in case involving commercial agreement (EDWARDS v SKYWAYS (1964)).
The court said that the promise and agreement had no legal effect because there was no intention to
enter legal relations.
Intention to create legal relations

Offer + acceptance
Consideration

Various Form of Remedies Available for a Breach of Contract

Breach of contract is the performance out of the promise, not correspond to the promise. Normally,
breach of contract is might delivering unreasonable time, wrong date, and wrong address, and so on to
make it happened. Have various form of remedies available for a breach of contract, there are
damages, specific performance, injunction, rescission, and restitution.
Damages are someone required to compensate when injured by breach of contract. Mostly
compensate is money. According to the law, the party who has suffered by the breach of contract, they
can to claim compensate for any loss or damages. In the case of HADLEY v BAXENDABLE (1845), the
plaintiff claim for the damages failed because two reasons, there are the mills stoppage without shaft
was a natural consequences, and should have tell the situation of the mills. But the plaintiff do not to
tell the carrier, so plaintiff claim for damages was failed . In the case of PAYZU v SAUNDERS (1919),
there is duty to mitigate losses because when the plaintiff late the pay the installments, the defendant
was refused to deliver the goods to plaintiff.
Damages can help the person who injured by the breach of contract can to required equitable
compensate. As the case of HADLEY v BAXENDABLE (1845) cannot claim the damages because the
damages was natural, mill cannot work because of shaft, and mill should have a spare shaft for replace
the other shaft. So, the damages failed.
Specific performance is an equitable remedy, the court direct to enforce in the contract. It is not
available of right and given description of the court. Court order requiring performance specified in the
contract, it must performance when the contract has requiring . Specific performance will not be
allowed the court cannot control its enforcement, in the case of RYAN v MUTUAL TONTINE
WESTMINSTER CHAMBERS ACCOSIATION (1839). A lease of service flat, lessor should provide a
porter to constantly in attendance. But the court presumes that constant superintendence in such case
declined to give. Cannot to coerce to enforce the performance, the performance must have contract .
In my opinion, specific performance is the person who are require you to do then you need to do for
them if have signed contract for it. Of course that is not everything must do for them, at least that is in
the contract, not out of expect.
Injunction is an order of the court to stop performance, when a person to break their contract. Injunction
can effect of indirectly enforcing contracts for personal service WARNER BROS v NELSON (1937) the
defendant might injunction by the plaintiff, because defendant cannot to performance in front without
plaintiff. And the case of LUMLEY v WAGNER (1852) because of the injunction, the defendant cannot
to sing elsewhere or to anyone. Defendant only can to sing during plaintiff consent. The court states
that they had no power to make the defendant sing or encourage her to sing at the plaintiffs theatre.
Injunction is someone does not want the other to perform, if the person not listens to someone else,
then to apply the injunction to stop them to do it. Of course, to apply an injunction must have someone
has to hurt you on property or body then you only can to apply it to protect you. In these two cases
there have show both defendants was controlled by the plaintiff because the injunction. So, they need
to performed when plaintiff during at they around. But the court states that defendant can perform,
even the plaintiff not around there because defendant need to earn money for living.
Rescission is both sides are executed from performance when contract is canceled. If not performance
in future, then might can to sue them. For example, not perform yet but signed contract already, if the
supplier supply the goods is out of the contract, and then can to sue them. The case of LEWIS
TURNER v LINDA TURNER, Linda breach of contract, Lewis claim that rescission, the damages and
rescission is incapable to calculating, but according to Lewis, he want claim the amount $75,00, but

evidence was not support Lewis circumstance and fact. At the ends, the judgment was reverse
because the evidence of the Lewis damages and rescission was not support.
Rescission is similar with damages, damages are to require the loss, and rescission is to pay for loss.
Damages is the claimant come and ask for the damages, whereas, rescission is to pay them money for
remedy breach of contract. As the case of LEWIS TURNER v LINDA TURNER, Lewis is claim
rescission because Linda breach of contract, unlucky, he cannot claim the rescission because not
sufficient for evidence.
Eventually, to make a contract there must have offer, intention to create legal relations, acceptance and
consideration then only can to make a contract. Remedies for breach of contract, there are damages,
specific performance, injunction, and rescission. These are the remedies when breach of contract,
those can help to protect the plaintiff, even can to protect defendant.