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Published: Fri, 02 Feb 2018
Means of what should you do in the position of consideration
By doing the question, I would know what is consideration and performance of existing duties. The consideration is just simply said that something that receive by a promisor from promisee. The performance of existing duties is means what should you do in the position. If in your position, that was your existing duties, then will none of any consideration bonding. Besides that, as want to more detail, I will use the cases to explain the different circumstances of existing duties.
Definition of consideration:
If only one of the parties offer consideration, then the agreement can’t be legally a binding contract. In the other word, if an agreement consists of promises but don’t have the consideration, then the agreement is not a legally binding contract. Besides that, courts have differentiate the consideration into unilateral and bilateral by determine whether the consideration is provided by one or both sides. Bilateral is means the consideration is between two parties and the unilateral is only one party, and the other party would be the person who accept the offer.
The performance of existing duties
Existing duty mean in the position, what should you do and what you shouldn’t do. Once there is the existing duty for your position, then can’t bond a new consideration in that case, and what to do is just follow the previous consideration and done their own existing duty. For example, if you as the teacher, taught student is your existing duty. But when the student asks for additional class, then you should teach them because that is the existing duty for you as a teacher.
The cases domestic Balfour v Balfour (1919) 2 KB 571, CA and the Merritt v Merritt (1970) 2 All ER 1145, Stephenson J can briefly explain how the existing duty affect the court decision. In the case of Balfour v Balfour, the judgment is belongs to the defendant. Because after their divorce, the husband has no the duties give the money to the wife, so the wife was loss in the case. In my opinion, I agree to the judgment of court. Once they divorce, the husband has no need to keep going give his wife money. On the contrary, the judgment of Merritt v Merritt was different to the Balfour v Balfour. The judgment of the case Merritt v Merritt is belong to the plaintiff because the husband already promise when the mortgage was paid off, he will change the house name from joint name to the wife’s name, but he fail to do that. The court states that although in law they still in relationship as husband and wife, but they was no longer living together, so there was consideration occur and also there have an written agreement therefore the husband has to transfer the house’s name to his wife. In my opinion, I agreed to the judgment of the court. Although they still have relationship in law, but they have separate for life sometimes ago, so there is a consideration between 2 of them.
Now I would use the commercial case to explain the existing duty. I would compare between the case Stilk v Myrick (1809) 170 ER 1168, KB and the Hartley v Ponsonby (1857) 119 ER 1471, QB. In the case of Stilk v Myrick, the judgment is belongs to the defendant. At the beginning , there have 11 sailors in a ship, but at the end just remain 9 sailor. Then the captain was agreed to pay more wages for extra work. But the captain failed to do that and get sued. The court stated that although was less 2 sailor, but didn’t affect the work also. The remaining sailors have their obligation to do all job. So, the captain no needs to give them extra wages. Oppositely, the case Hartley v Ponsonby, the judgment is belongs to plaintiff. In this case, before they have 36 crew in a ship, but 17 of the crew refuse to work. So the remain have to do the other work, and the captain has promise to give an extra money for the 19 crew. But he refused to do that. The court said this promise was enforceable and the original contract had to end up and have to come out with a new contract.
By the next, I would use the case of Glasbrook v Glamorgan CC (1925) AC 270, HL and Ward v Byham (1956) 2 All ER 318, CA to reflect the performance of existing duties. In the case of Glasbrook v Glamorgan, the judgment is belongs to plaintiff. In this case, the owners of the colliery were request for extra protection and also agreed would pay for the services that the police provided in written. But at the end, the defendant refused to pay it, and stated that was the existing duties as a police. The court stated that although that was the existing duties as a police but when someone desire a special services although that is the obligation of the police, the police will act like “ lend” the services to them and get the consideration of payments. But the judgment was different in the case of Ward v Byham. The judgment for this case is belongs to the plaintiff. As we know that, there was no legal relationship within the unmarried spouses. So what the father promised to is already a new consideration. The new consideration is to look after the child in good condition n healthy to exchange the 1 pound per week. So the father has to pay the mother as he promise before.
Be the last, I would use the case of Harris v Sheffield United (1987) 2 All ER 838, CA and Collins v Godefroy (1831) 109ER 1040, KB to explain the performance of existing duties. In the case of Harris v Sheffield United, the judgment is belongs to plaintiff. In this case, the football club was request for external “services” from police. So they should pay the police. Whether want to pay to the police is depends on where the activities was held, is in private place or public place , and also depends on what the activities was held, (ex: election are clearly is public event) . In the case of Collins v Godefroy, I noticed that the judgment is belongs to defendant. Once the plaintiff receive the subpoena, no wonder how he/she should attend to the court. Once the plaintiff received the subpoena, no wonder did the defendant promise to give money, he/ she attend also. If you not receive the subpoena, and the person who ask you to attend the court and promise will pay you amount, then the decision would change.
An offer is an expression of the willingness to be constraints by the term of the contract. An agreement is occur between an offeror and offeree. Offeror is that person who offer or promise to do something and the offeree is that person who accept the offer. There have two types of offer, that’s the bilateral and unilateral. The bilateral is that one sides of party promise to pay the other party in return to do something or performance of act. Bilateral offer will occur while one sides become offeror and the other sides of party become receptance. The unilateral is means the offer is from the offeror to a group of people or the whole world. The case refer for unilateral is Carlill v Carbonic Smoke Ball Co (1893) 1 QB 256, CA. At the end of this case, the judgement are belongs to the plaintiff, because the defendant had make a promise on it. The defendant had promised that if the people who use their smoke ball directly and still caught flu can get the £100 from the Carbonic Smoke Ball Co. In the terms of offer, there have another type is invitation to treat. The invitation to treat is an action that invited other to make a offer with you. Sometimes an advertisement also can be an invitation to treat, but is depends on the word they advertise. Besides that, an auction for sale also is an invitation to treat but not an offer. Based on the case Fisher v Bell (1960) 3 All ER 731, DC that shows is an invitation to offer and not an offer. The judgement for this case is belongs to defendant. In this case, there is never an offer to sell but only can offer to buy, that means they just post the knife there and never said that knife is for sell. If have customer who asked it is for sale or not, that mean is the customer offer to the shopkeeper and the shopkeeper is the receptance. Besides the invitation to treat, there also have one type of offer is named counter offer. A counter offer is “never accept the first offer”. That means what they offer to you before and you are rejected then do the counter offer to them. The offeror and the acceptance at the beginning will exchange while the counter offer occur. For example: A offers to sell her house for $100,000, and have to pay within 60 days; B receives the offer and gives A counter offer of $90,000, and will paid within 45 days. The original offer is dead, despite the shorter time for payment since the price is lower. Seller then can choose to accept at $90,000, counter again at some compromise price, reject the counter offer, or just let it be expired.
Intention to create legal relation:
By creating a legally contract, just supported by consideration is not enough, the parties must also have the intention to create legal relation. Naturally the presence of consideration is represent the intention to create legal relations, though there are some situations where the presumption of the intention can be rebutted, thus determining that there is no contract and also no legal liability. The cases that better explain the intention to create legal relation is the Balfour v Balfour (1919) 2 KB 571, CA. The judgment for this case was belongs to the defendant because there was no any indication that the arrangement was intended to be a contract.
An acceptance can be an oral or written but must communicate with the offeror before they become a contract. The moment you signed the contract means you accept what they offer and can’t cancel it. The case of Felthouse v Bindley (1863) 142 ER 1037, Exch Ch has briefly explained the concept of acceptance. In this case the judgment is belongs to the defendant because there stated that the nephew had never communicated his acceptance of the uncle’s offer and some more the nephew haven signed the offer yet, so consider that’s not a legal contract.
In generally, a contract that without consideration can’t be defined was a binding contract. Anything of value such as services or an item also can be a consideration, for which party to a legally binding contract must agree to exchange once the contract to be valid. If only one party offer the consideration, then the agreement is not legally binding contract.
Remedies for a breach of contract:
Breach of contract mean each party failing to fulfil any term of the contract and without a legitimate legal excuse. A breach contract also can be defined as broken promises to do something or not to do something. There have few types of remedies for breach contract, like rescission of contract, damages, specific performance, injunction, and restitution.
Rescission of contract:
Rescission can be defined as an equitable remedy that wipes out from the existing contract and restores the party to their own situation before entering into the contract. In generally, rescission of contract also is the cancellation of contract. If any of the money has been paid while in the contract status, then money is returned as part of the rescission process. Rescission will occur while innocent of representation, mutual mistake, lack of capacity….etc. For an example, assume you agreed to sell the car and the buyer were agreed to buy a car that you thought you owned. Later, it comes out and stated that you didn’t have the title of the car. Rescission would be the proper remedy.
Damages are one of the party compensate the injured party for the breach of the contract. When the contract was broken, the party who suffered can get the compensation for any lose and damages from the party who broken the contract. To more understood can referring to the case Hadley v Baxendale (1854) 9 Exch 341. The judgment of this case was the court declined to allow Hadley to recover back the lost of profit, holding that Baxendale could only be took back for losses that were foreseeable, or if Hadley had mentioned any of his special circumstances in advance.
Specific performance means that when one party has breach of contract for certain excuses and the other party had sue the party who broken the contract, and judgment of the court will stated that the defendant still have to follow what the contract stated. Besides that, specific performance can be in the form of any type of forced action, usually is to complete a previously established transaction.
The injunction in remedies means that the courts have stopped you to doing something in future as well as they get the truth. For example for this term is if you own a 50 years tree surrounded your housing area, but your neighbor was state that the tree was belong to them and they wanted to cut it down. While the dispute was still waiting, the court would use the injunction preventing to prevent the neighbor to cut the tree.
The injured party would claim the compensation from other party who did the wrong decision and make the injured party bear the lost. But the restitution is depends on different circumstances.
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