The Performance Of Legal Or Contractual Duty As Consideration And Submissions For Plea In Mitigation

Essentials of a valid consideration

1. write an essay on the following

“The performance of an existing legal or contractual duty can never amount to sufficient consideration”. Discuss

2. write your full submissions for the plea in mitigation for Sandra Quinn.

A contract is an agreement between two or more parties for the performance or non-performance of any act. An agreement gives rise to legal obligations which legally enforceable by law. Under the English Common Law principle, there are basically three essential factors which constitute a valid contract under the law:

First, there should be an agreement between the contracting parties,

Second, contractual intent must be present between/among the parties to a contract, and

Lastly, there should be an element of consideration.

All these three factors are necessary for any agreement to be legally binding as a valid contract under the eyes of the law. Absence of any one of these factors in an agreement renders the contract invalid. Thus, a valid contract has to fulfill all the above prerequisites. In a valid contract there is an “offer” and “acceptance” of offer. In short, a proposition is made by one party and such a proposition is accepted by the other party. Thus, the elements of offer and acceptance are the main essence of a contract.

The above question revolves around the concept of “consideration”. To answer it we should have a clear idea of, “what a consideration is?”

Under the English Common Law, a promise merely does not constitute a binding contract on the person promising something until and unless it is accompanied by a “consideration” as in the case of Thomas Vs Thomas (1842)2 QB 851. Consideration means “something of value” which has to be given in return on account of the made promise in order to make such a promise legally binding as a valid contract. For example, when we buy something for the store, we pay for the goods. Such payment is regarded as a consideration for the seller’s promise to deliver the goods to the buyer. In a similar manner, the delivery of the goods by the seller is a consideration for the buyer’s promise to pay for such goods.

 A traditional definition of consideration is set out in Currie vs. Misa (1875) which is as follows:

“a valuable consideration, in the sense of the law, may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss of responsibility given, suffered or undertaken by the other”

The concept of Sufficiency of Consideration

Though the courts strictly follow the concept of consideration, it sometimes becomes unorthodox (as in the cases of Ward v Byham [1956] 1 WLR 496, Williams v Roffey Bros[1990] 2 WLR 1153). Thus, consideration is the principle criterion with the help of which the English courts decide whether an agreement is legally enforceable or not. Consideration is the main indicator which proves that the contracting parties have the intention to make an agreement legally binding.

The following are the essential elements that are required for a valid consideration:

• Consideration must not be past: There should be a direct relation between a promise and a consideration. The consideration should be in relation to that particular promise.Whether the concerned consideration is past or not is a question of fact. The words mentioned in the agreement merely may not a conclusive issue (as in the case of Re McArdle (1951) Ch 669). There are two exceptions to the past consideration rule:
• An act already performed may be valid if:
• The promise would have been legally enforceable if it had been made prior to the act.
• Understanding between the parties about the performance of the act, and
• The concerned act is done at the promisor’s request (as held in the case of Lampleigh v Braithwaite [1615] EWHC KB J17,
• Negotiable instruments, cheques, promissory notes, demand draft, etc
• Consideration should move from promise Tweddle v Atkinson [1861] EWHC QB J57)
• Consideration should be legal under the eyes of the law
• Consideration mush be requested
• Consideration mush be sufficient

Legally, consideration should provide for some benefit to the promisor or some detriment to the promise, but the amount of benefit or detriment need not be too much in amount. Although a contract has no legal binding until and unless some consideration is exchanged with should be economical in nature. Thus, consideration must have some material or economic value. In simple terms, sufficient consideration means what is put forward should be something which the courts of law will consider as legally capable of constituting as a consideration. Consideration may be sufficient but not necessarily liable to be adequate (
Chappell v Nestle [1960] AC 87). This generally indicates that the courts are not much keen on evaluating the parity between the values of the consideration which is being offered by the parties involved which means that the courts do not interfere with the bargain made between the concerned contracting parties.

Exceptions to the concept of sufficient consideration

• Past Consideration: a consideration which has been paid in the past is not generally considered as consideration in the present context. A fresh consideration is mandatory for a fresh contract duly executed.
   
• Performance of Existing Duty: the performance of an existing duty; be it legal or contractual is not regarded as a valid consideration in the present context of the fresh contract. The basic logic behind it is that the promise does not face any legal detriment and the promisor gets what was already initiated by the parties to the existing contract (Collins v Godefrey (1831) 1 B & Ad 950).
   
• Absence of Economic Value: If a consideration lacks adequate economical value, then it is not considered as a valid consideration.
   
• Part Payment of Debts: Part payments are not regarded as consideration as part payments are not adequate to discharge a larger debt.

It is clear from the above discussed points what are considered as the pre-requisites of a valid contract and a valid sufficient consideration under the English law. Thus, the performance of an existing legal or contractual duty cannot be in any way considered as a valid consideration in the context of a present contract (as held in the case of Stilk v Myrrick [1809] EWHC KB J58). The most striking reason for this is that which was already promised to be delivered or acted upon, cannot compensate or substitute something which has to be delivered or performed again under a fresh promise/agreement/contract. There is no exchange of benefit and/or detriment under the new agreement. Performance of an existing obligation is thus, not enforceable under the principles of sufficient consideration.

2. Good Afternoon, Your Worship and all present in this court room. My name is ________________. I will present the case of the defense. Sandra  Quinn is my client. It is the allegation of the prosecution that my client has committed burglary at the offices of Aztec Computing Limited situated at 106, Oswald Road, Ealing. It is the allegation of the prosecution that my client has taken various items from the office which includes three laptops worth 700 pounds each, 3 iPods worth 350 pounds each and an iPhone. The security guard, Mr. Rex Poole who was patrolling the building at 2.50am has claimed to have noticed a female in her mid 20s with long blonde hair dressed in a red hood and black jeans carrying a large black bag and running down the alleyway. Whereas my client was stopped by the police at 2.30 am a few streets away from the site of occurrence of the crime. Since she fitted the description of the burglar noticed by the security guard she was charged with the burglary. Though she was not carrying the bag and nothing was recovered when the police carried out search. In an identification parade carried out by the police Mr. Rex Poole identified my client as the burglar.

Exceptions to the concept of sufficient consideration

Now I would  state the personal circumstance of my client. She is 25 years old and lives with her mother and 7 years old son. She stays at a housing association at Ealing. She works as a shelf stacker in Tesco’s in Ealing.  Her son is also studying in a school in the town. From her personal circumstance it is evident that my client would under no circumstance abscond if she is granted bail.

As regards the allegations, the  defendant when interview by the police has denied the allegations which have been leveled against her. The case of the prosecution is completely circumstantial. There is prima facie no evidence to establish that the woman whom the security guard had noticed on the night of the occurrence of the crime is my client. He had not seen the face of the woman. There is no evidence that the woman he had seen and my client are one and the same entity. The evidence established through identification seems nebulous. Moreover my client even has a strong alibi. She was with her boy friend Mark that night at the time of occurrence of the crime.

Your Worship, my  client voluntarily surrendered to the police. While she was questioned by the police she has readily answered all questions and extended the greatest possible co-operation. In spite of being under investigation she did not attempt to abscond.

My client admits to the prior convictions of theft and burglary. As  far as the burglary sentence is concerned she was sentenced to 180 hours community order which she has completed recently. She had attended on time and completed all formalities adequately.  As regards the absconding conviction my client could not attend court on time but appeared late. The reason being that her son Peter was not well and there was nobody to take care of him at home. My client’s mother who generally takes care of Peter was also on holiday. Moreover, though she tried to arrange for somebody to look after Peter yet she failed to find anybody. The defendant may provide if the court requires medical certificate of her son, Peter. She had also called up the court and informed that she would not be able to reach court on time. But at present her son is in a good health and hence this is no longer a problem. There is no risk to the community if my client is released on bail.

Submissions for Plea in Mitigation for Sandra Quinn

My client is not at risk of re-offending as she is working at present and in case she offends again she would lose her job. She has a son who is dependent on her and thus she would not risk her job by committing another offence. Her mother stays with her and she can supervise her regular activities.

My client is agreeable to comply with the conditions  of bail, if any, imposed on her. She would not contact or approach Mr. Rex Poole and does not even have an intention to do so. Thus there is no base for the argument of the prosecution that the defendant would try to interfere with the witness, Mr. Rex Poole.

There is no risk as to the fact that my client would attempt to abscond. My client intends to clear her status of being an offender and hence would attend court whenever required. Moreover, the family ties of the defendant would not permit her to do so. She has a son who is dependent upon her. The client is well aware of the consequences she would have to face in case she absconds. My client would lose her housing accommodation in case the allegation against her is proved.

The witness has identified my client as the burglar who ran away . However, he has admitted that he only saw that a lady with blonde hair wearing black jeans and red hood ran away. She even had a black bag in her hand. But Mr. Poole had not seen the face of the lady who ran away. It is doubtful that the witness could have identified anybody in such a situation, let alone my client whom he had never met. Thus the case of the prosecution is weak and the nature of the offence with which my client has been charged is not such that in case bail is granted my client would be a danger to the community. Since the client has a son dependent on her, refusal of bail would be detrimental to the interest of the defendant’s son. Since my client is a single parent and the only earning member in her family, she needs to continue with the job so as to be able to bear the expense of litigation.

References

Andrews, N. (2011). Contract law. Cambridge: Cambridge University Press

Lampleigh v Braithwaite [1615] EWHC KB

Chappell v Nestle [1960] AC 87

Collins v Godefrey (1831) 1 B & Ad 950

Denoncourt, J. (2009). Q & amp;A Business Law 2009-2010. Hoboken: Taylor & amp; Francis

Denoncourt, J. and Denoncourt, J. (2012). Business law 2012-2013. Abingdon, Oxon: Routledge.

Hesselink, M. (2015). Democratic contract law. European Review of Contract Law, 11(2)

R v Clark (1927)

Re McArdle (1951) [2015] Ch

Roscorla v Thomas (1842)

Stilk v Myrrick [1809] EWHC KB J58

Taylor, R. and Taylor, D. (2009). Contract law. Oxford: Oxford University Press

(Thomas v Thomas) (1842) 2 [2015] QB

Tweddle v Atkinson [1861] EWHC QB

Ward v Byham [1956] 1 WLR

Williams v Roffey Bros[1990] 2 WLR 1153)

(Andrews, 2011)

(Thomas v Thomas) (1842) 2 QB 851

(Denoncourt, 2009)

(Denoncourt and Denoncourt, 2012)

(Hesselink, 2015)

(Taylor and Taylor, 2009)

 Description of the facts

  Personal details of client

 Allegation made against defendant

 Voluntary surrender to the police by the defendant

 Previous convictions.

 Conditions for the bail

 Defense on behalf of the client