Introduction

Confucius was once quoted saying to ‘never contract relationship with a man who is not better
than thyself’1. While this may seem like a sound and perhaps even fundamental principle to
follow when intending to create legal relations, in the era of globalization, entering into a
contract is not that unostentatious. While contracts can be loosely categorized as formal and
informal contracts, it is easy to think of contracts as lengthy words on small prints, most every
day contracts do not fit within such stereotypes. While some of such informal contracts are
performed almost as soon as they are created such as buying a snack from a vending machine,
some however provide for things to be done a long time in the future. With an immense
amount of literature about the role that contracts and the type of contracts that play in modern
democracies and the economic, political and social context of modern day globalization 2., it all
still boils down to the most fundamental and indispensable four elements ; offer, acceptance,
consideration and the intent to create legal relations. An offer which is defined as one party
making an offer to another that has to be unequivocally accepted must be complemented with
acceptance from the other party. No agreement can arise if the offeree rejects the offeror’s
terms or purports and neither will an agreement arise if no offer is made. This is said to be
similar to that of the rules of chess where certain pieces can move certain ways and at such
bring forth certain consequences. However at a closer look at the more salient aspects of it,
despite a strong pull towards formalism, not all judges play according to these simple rules. This
is due to the two more underlying elements of a contract; consideration and intention to create
legal relations which often can lead to ambiguity and vagueness in determining the terms of an
agreement and determining who are the potential offerees as seen in the case of Chuck and
associates. While offer and acceptance can be clearly communicated between two parties,
movement of consideration and the pinpointing of intention is not unadorned and forms the
crux of complication in the formation of a contract as seen between Chuck, Leonard, Paul,
1
www.thegoodquotes.com
2
A Casebook on Contract,Smith and Thomas (Sweet and Maxwell , 2011) 14
Robert and Mary. Traditional analysis of consideration is demonstrated by proof of a benefit
and detriment while Lush J stated that a valuable consideration, in the sense of the law, may
consist either in some right, interest, profit or benefit accruing to the one party and some
forbearance to the other’.3 However, the modern English Law has chosen to abandon the
benefit/detriment analysis and go forth with Sir Fredrick Pollock’s definition being the price of
which the promise of another is bought. 4It is fundamental that the application of both is used
in contracts as the movement of consideration or the suffering of detriment and the receiving
of benefit can be hard to distinguish. Likewise, the intent to create relationship, the last
element of a contract is also hard to determine. As intent deals with parties mindset and
intuition to create legal relations, it is hard to decipher where and where such intentions take
place as seen in the case of Chuck and the local locksmith, Robert. As such, all contracts are
agreements requiring the mindset of both parties to meet on matters which are the subject of
agreement. This meeting of minds is illustrated as consensus ad idem and as such forms the
heart of contract law.

Chuck and Robert

In the case presented, Chuck is a circus owner who decides one fine day to make minor repair
work to the lion cages in his circus. Chuck performs his duty as a responsible owner and enlists
the service of the local locksmith, Robert to change the locks on the lion cage in the circus. The
enlistment of Robert’s service by Chuck, a circus owner can be presumed to be a commercial
agreement and as such the contract will be held as legally binding in courts. To properly
construe an intent to create legal relations between the two parties will not rely upon the
subjective state of minds as we are unable to clearly pinpoint Chuck nor Robert’s thought
process upon entering into a contract but rather upon a consideration of what was
communicated between words or by conduct that ultimately leads to conclusion of intending to
create legal relations. This was stated by the Supreme Court in RTS Flexible Systems Ltd v
MolkereiAlois Muller by Lord Clarke and it only apt that such a statement applies to the case of
Chuck and Robert. As the intent is defined by means of ‘words or conduct’, Chuck ‘agrees’ with

3
Contract Law, Jill Poole ( Oxford, 2014) 124
4
Principles of Contract, Winfields ( Stevens, 1950) 133
Robert to ‘fit new locks’ already provides sufficient evidence as to presence of intent. However
the argument that comes in to question at this point is where does the formation of offer and
acceptance take place between Chuck and Robert? As an offer is often defined by Professor
Treitel as the expression of willingness to enter a contract, Chuck’s conduct ofagreeing with
Robert to fixing the locks becomes the basis of the contract formed. However for a contract to
be legally enforceable, that particular offer must be unequivocally met with an acceptance. This
is explicitly where the terms of the contract becomes muddled as Robert’s acceptance is not
visibly seen in words. However, what he lacks for in words he makes up for in conduct as he is
the seen the next day to be ‘on his way to start the job’. This method of acceptance seen in his
conduct is clearly illustrated and parallels the cases such as Carlill v Carbolic Smokeball5and
Brogden v Metropolitan Rail6. In the latter case, although there was no communication of
acceptance by the plaintiffs but the act of coal being delivered on the terms specified in the
contract to the defendant was construed to be a form of acceptance by conduct whereas the
promise by the Smokeball company to pay MrsCarlill the next time she caught the flu as the
contract aimed to was held legally enforceable much similar to the case of Chuck agreeing to
Robert fixing the locks. This brings about the aspect of consideration into play as to where and
when such agreements are enforceable in a unilateral contract. The question is if the mere fact
of the promisee doing something at the request of the promisor enough to consider it an
agreement or is the act of consideration needed to declare such enforceability. While
agreement is necessary it is not sufficient for a binding legal agreement. In the case of Chuck
and Robert, Roberts explicitly only agreed to fix the locks and nothing more. There was no
mention of payment offered by Chuck nor demanded by Robert. As such, Robert had only
entered into an agreement with Chuck so as to fix the locks, nothing less and nothing more. In
that sense, if Robert were to sue Chuck for lack of payment for the services rendered, Chuck
could argue that past consideration is not good consideration. This legal concept which was set
forth in the case of Roscorla v Thomas 7where the plaintiff promised the horse that was to be
sold was ‘sound and free from vice’ turned out to be untrue. However, the plaintiff was unable

5
Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 Court of Appeal
6
Brogden v Metropolitan Railway Company (1876–77) L.R. 2 App. Cas. 666
7
Roscorla v Thomas, (1842) 3 QB 234
to sue as the sale was already complete before the promise was made. Likewise, a demand for
payment after the act was completed by Robert would be completely unjust. As stated by LJ
Jenkins, “the true position was that, as the work had in fact all been done and nothing
remained to be done…the consideration was wholly past consideration”8. The agreement only
concluded at Robert fixing the locks and anything beyond that would be considered as
nudumpactum. Thus, it is argued that Chuck is not liable for any payment towards Robert and
his agreement with Robert is only enforceable up until Robert completed the work they had
agreedupon which is merely changing the locks and nothing else.

Leonard and Robert

Arguably, Leonard the lion tamer and his interactions with Robert also do not suffice to hold
him liable of any payment towards Robert. ‘As such, Leonard’s offer to pay an additional £ 100
stems solely from his fear of safety and would not alter Robert’s contractual obligation to
change the locks as agreed with Chuck earlier. This brings about the legal principle of
performance of existing duty where what is done or promised is no more than what the
promisee is already previously legally bound to do and if nothing more is got in return the
consideration could be called unreal9. If Robert was already bound to perform the act anyways,
how would it detriment him to reaffirm his prior obligations to Chuck? And likewise, if he was
already on his way to perform the act, how would it benefit Leonard to pay him to do
something he was legally bound to do? As such, is there valid consideration between both
parties? Generally, the performance of an existing contractual duty owed to a third party is said
to be valid consideration. In these cases, the promise obtains the benefit of a direct obligation
which can be enforced.10 Such is the case of Shadwell v Shadwell where an uncle promises to
pay his nephew a said amount of money if he marries his intended fiancé. The nephew then
alleged that his uncle failed to honor his promise and sued for the arrears. While similar to the
statement above, Byles J dissented that the letter was ‘no more than a letter of kindness,

8
The Modern Law of Contract, Richard Stone (Routledge,2013) 233
9
Davis (1937) 6 CLJ 202: Reynolds and Trietel(1965) 76 Malaya LR 1.
10
New Zealand Shipping Co Ltd v AM Satterthwaite Co Ltd (1975) AC 154,168
creating no legal obligation’. However the plaintiff claimed that he had provided sufficient
consideration by fulfilling his contractual obligation of marrying his fiancé.

Similarly, it can be argued that while Robert was only doing what he was contractually bound to
do, he had provided sufficient consideration by the mere act of performing his existing duties
which is fitting the locks owed to the third party in this scenario namely, Chuck. It can also be
argued that the engagement was not induced by the uncle’s promise as well nor in the case of
Robert and Leonard. Chuck’s employment of Robert was in no way induced by Leonard’s fear of
safety of the faulty locks. However, upon looking at the case New Zealand Shipping Co Ltd v AM
Saterthwaite Co Ltd, it was ruled that the act of performing existing duties was of sufficient
consideration and did not beckon additional detriment to the promise such as in the case of
Leonard. Robert’s act of completing the job would have not brought upon any extra detriments
regardless of Leonard’s offer of an additional £100. Similarly, the case of The Eurymedon, while
the stevedores were bound by a third party to unload the ship, it was held as consideration to
relieve them from any liability of damages caused by unloading. As such, Robert’s contractual
obligation to Chuck to fix the new lock would be construed as sufficient if not adequate
consideration in his agreement with Leonard given the performance of his existing duties
towards Chuck. The main dispute that was laid in the case of Shadwell v Shadwell was whether
the uncle’s consideration was a mere object of interest to a relative or actual contractual intent.
Likewise, in our case Leonard’s offer can be easily misconstrued as a matter of interest or intent
to enter legal relations as well. This is because while fearing his life safety is most pivotally a
cause for intent it must be taken into consideration Leonard’s job which is a lion tamer. As such,
the faulty locks and escaping of the lion may seem dangerous to the reasonable man, it may not
be the same for someone who is professionally trained to tame such animals. However, this can
be easily rebutted with the case of Pao On v Lau Yiu Long where regardless of the promisor’s
intent, the mere promise of the promise is enough to be interpreted as consideration. In such a
legal standpoint, Robert’s act of actually completing the task goes beyond what is legally
necessary to be construed as consideration. Given all of these point, it is safe to say Leonard is
infact liable to the additional £100 for Robert’s services.
Chuck and Paul

The issue of whether the performance of an existing duty owed to the same promisor i.e Chuck
is seen to be valid consideration is pivotal when examining the contract between Chuck and
Paul. Upon initial evidence, it is construed that Paul’s promise to simply carry out exactly the
same performance of painting the Big Top for an additional sum is totally one sided. This ‘same
for more’ concept took precedence in the Stilk v Myrick 11case where the answer to the
enforceability of a promise of ‘more for the same’ is not valid consideration. In this case, the
captain of the ship promised that the remaining wages of the sailors who deserted the ship
would be divided among the remaining sailors if they reached their destination safely. Upon
return, the captain failed to honor his promise but the sailors feat to recover the wages was
unsuccessful as the courts held that they were only performing what was obliged of them to do
in the first place. This could be said the same about Paul as he was only meant to be doing what
he was previously contractually obliged to do which was finish painting the Big Top as promised
before the weekend for £2500. As such, his demand for an additional £800 was absurd and
unconscionable. If the sailors went out and above their way to perform their existing duty such
as in Hartley v Ponsonby12then perhaps it would be right to claim their wages. Quite
contrastingly, Paul did not go beyond his contractual duty to paint the Big Top. When the
agreement was made, he did not dispute the workload or specify the need for additional time
to complete the job alone and hence he had no legal right to claim more payment. Keeping
such analysis based mainly on Campbell’s report in mind, Chuck need not pay the extra £800 to
Paul as he has provided insufficient consideration and only was performing what was meant to
be done. However, as any general rule goes, the basis for the decision in Stilk v Myrick was not
one without controversy as a decision made by the Court of Appeal in 1990 in the case of
William Roffey Bros & Nicholls Ltd cast some doubt on the scope and validity of the traditional
rule. The simple divergent between the two cases mentioned and the axiomatic issue in our
case is if practical benefit is premeditated to be valid and sufficient consideration. In light of

11
(1809) 2 Camp 37; 170 ER 1168 ; 6 Esp 129;170 ER 851
12
(1857 7 E & B 872
Williams v Roffey Brothers, the answer would be yes. It is essential to examine the scope of
practical benefit obtained in the case of Chuck and Paul and match it to that of Williams v
Roffey. In both cases, the promisor obtained a practical benefit by the promisee’s continued
performance. Paul’s continued performance of painting the Big Top would mean it would be
finished by the weekend. Chuck would also be avoiding the trouble and expense of obtaining a
substitute and lastly, it is already explicitly stated that the weekend is a bank holiday with high
temperatures and this would beckon a lot of visitors which subsequently increased Chuck’s
gross income of the week. This brings about the question of economic duress. In the cases of
Adam Opel GmbH v Mitras Automotive Ltd Costs 13, the judge found that the agreement was
supported by consideration but voidable due to duress. Likewise, Paul’s demand of an
additional £ 800 is implicitly known to be of economical duress as he is aware of the extra
money Chuck would be potentially making over the weekend. Thus, this makes the contract
voidable and discharges Chuck of any liability of extra payment. While the recognition of
practical benefit as consideration could be a symbolic step towards overall recognition, all
promises to pay more for performance of an existing duty made only WITHOUT duress in a
commercial context will give rise to an enforceable contract. The implicit presence of duress in
the case of Paul and Chuck therefore cancels out the consideration seen in the practical benefit
obtained by Chuck and as such makes Chuck’s additional payment to Paul voidable.

Chuck and Mary

The pressing issue between Chuck and Mary is the theidealogy of past consideration being valid
consideration or not. Mary’s act of covering the act of the fire eaters is one that is not required
and above and beyond her contractual obligations as a trapeze artist. As such, Chuck is
rightfully not obliged to pay her for what she was not contracted to do. While it could be
argued that Chuck did promise to increase her salary, the promise to pay came after the act had
been completed by Mary. Following the rule laid by the case in Roscorla v Thomas, past
consideration is not good consideration. However as with any rule, there is exceptions and one

13
Adam Opel GMBH And Another V Mitras Automotive (UK) Ltd[2007] EWHC 3205 (QB)
of which is pivotal in the case of Chuck and Mary is if the act was asked to be performed by the
promisor. Chuck had not ask Mary to cover for the fire eaters and hence her action could not be
relied as consideration for Chuck’s promise that came after the act. It is merely an act or
forbearance in time past by which Chuck has benefitted without incurring any legal liability.
This echoes the case of Re Casey’s Patents, Stewart v Casey where the owners of certain
patents promised their manager one third of their share for the gratitude of his help. The court
ruled that such consideration is past and not valid. Likewise, Chuck’s choice of changing his
mind should bear no legal liability as there was no consideration between both parties in the
first place.

Conclusion

In light of a real life event, it can be construed how consideration reflects on various policies
and rules that either charges or discharges a promisor from legal liability. With that being said,
the flexibility and vagueness of the doctrine of consideration has proven to be a loophole in the
ever developing law. As such, its role should be thoroughly confined to formation of contracts
supplied with promissory estoppel.As Lord Goff stated, ‘while the doctrine of consideration is
unpopular it is still undisputedly an indispensable foundation of the modern contract law14.

14
Contract Law, Richard Taylor ( Oxford, 2013) 82
 Bibliography

 Books
Taylor R, Contract Law Directions (5thedn Oxford,2013)
Elliot C, Contract Law (9thedn Pearson,2013)
Samuels G, Contract Law Cases and Material (Sweet and Maxwell ,2007)
Poole J, Casebook on Contract Law(12thedn Oxford, 2014)
Mckendrick E, Contract Law ( 6thedn Oxford University Press, 2014)
Chen-wishart M, Contract Law (5thedn Oxford University Press, 2015)
Duxberry R, The Contract Law ( 2nd edn Sweet and Maxwell, 2011)
Stone R, The Modern Law of Contract ( 3rd edition Routldege, 2011)

 Electronic Sources
Twain Quotes, ‘Quotes on Contract Law’
www.thegoodquotes.com
accessed on 30th Nov 2017
 Table of Cases

 Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 Court of Appeal

 Brogden v Metropolitan Railway Company (1876–77) L.R. 2 App. Cas. 666
 Roscorla v Thomas, (1842) 3 QB 234
 Adam Opel GMBH And Another V Mitras Automotive (UK) Ltd[2007] EWHC 3205 (QB)
 Hartley v Ponsby (1809) 2 Camp 37; 170 ER 1168 ; 6 Esp 129;170 ER 851
 Willian v Roffey Bros Ltd (1857 7 E & B 872
 Stilk v Myrick [1809] EWHC KB J58 King's Bench Division