Performance of an Existing Duty is No Consideration

Introduction

Consideration means something of value given in return for a promise. In contract law, a person must promise to do something more than what they are already legally required to do.

If a person simply performs a duty that they are already bound to perform by law or by contract, it usually does not amount to valid consideration.

Meaning / Definition

Performance of an existing duty is no consideration means that doing something which a person is already legally bound to do cannot normally be treated as consideration for a new promise.

In simple terms, if a person is already required by law or contract to perform a particular act, performing that same act again cannot support a new promise of payment or reward.

However, the rule may operate differently depending on whether the duty arises from law or from a contract with another party.

Modes or Types

Performance of Legal Duty

When a person performs a duty imposed by law (a public duty required by law), such performance is not valid consideration for a promise.

A person cannot demand additional payment for doing something they are already legally required to do.

Performance of Contractual Duty Owed to the Promisor

If a person is already bound by a contract to perform certain duties for the same promisor (the person who made the promise), performing that same duty cannot be valid consideration for a new promise.

In such cases, the law treats the promise to pay extra as unenforceable (cannot be legally enforced).

Performance of Contractual Duty Owed to a Third Party

If a person performs a duty which they already owe to a third party, it may still be valid consideration for a new promise made by another person.

In such situations, the act may provide a benefit or advantage to the promisor, which the law may treat as valid consideration.

Important Case Law

Collins v. Godefroy (1831)

In this case, the plaintiff received a summons (official legal order) to appear in court and give evidence in a case.

The defendant promised to pay the plaintiff some money for the trouble of appearing in court. The plaintiff later sued the defendant to recover the promised amount.

The court held that the plaintiff was already under a public legal duty to attend court and give evidence once he received the summons. Therefore, the defendant's promise to pay money did not amount to valid consideration.

As a result, the promise was not enforceable.

Stilk v. Myrick (1809)

In this case, two sailors deserted (left the ship) during a sea voyage. The captain promised the remaining sailors that the wages of the two sailors would be shared among them if they sailed the ship back home.

After the voyage ended, the captain refused to pay the additional wages.

The court held that the sailors were already contractually bound to work the ship back home. Since they only performed their existing duty, there was no new consideration for the captain's promise.

Therefore, the promise to pay extra wages was not enforceable.

Shadwell v. Shadwell (1860)

In this case, the plaintiff had promised to marry a woman named Ellen Nicholl.

The plaintiff’s uncle wrote a letter promising to pay him £150 per year after the marriage, until the plaintiff’s professional income reached a certain level.

The plaintiff married Ellen Nicholl but did not receive the promised payments. After the uncle’s death, the plaintiff sued the executors (persons legally responsible for managing the estate of the deceased).

The court held that the promise was enforceable because the plaintiff’s marriage created a legal responsibility and financial burden, and the uncle may have received a benefit from the marriage of a close relative.

Therefore, the marriage was treated as valid consideration.

Distinction / Comparison

Legal Duty vs Contractual Duty as Consideration

Performance of Legal Duty

• The duty arises from law.
• Performing such duty cannot be consideration.
• Example: Giving evidence in court after receiving a summons.

Performance of Contractual Duty

• The duty arises from a contract.
• If owed to the same promisor, it is not valid consideration.
• If owed to a third party, it may sometimes be valid consideration.

Practical Example

Suppose a police officer promises to protect a shop because it is part of his official duty.

If the shop owner promises to pay the officer extra money for providing the same protection, that promise cannot form a valid contract because the officer is already legally required to perform that duty.

However, if a person performs a contractual obligation that benefits another party who promises payment, the court may treat it as valid consideration depending on the circumstances.

Summary

• Consideration must involve doing something more than an existing duty.
• Performing a legal duty required by law is not valid consideration.
• Performing a contractual duty owed to the same promisor is also not valid consideration.
• Performing a duty owed to a third party may sometimes amount to valid consideration.
• In Collins v. Godefroy, attending court after a summons was held to be a legal duty and not consideration.
• In Stilk v. Myrick, sailors performing their existing duty could not claim additional wages.
• In Shadwell v. Shadwell, marriage to a third party was treated as valid consideration for the uncle’s promise.