The following, more recent, example arose in the context of the workplace.
Re Casey’s Patents (1892) Work was undertaken and afterwards, in lieu of
payment, some shares in patents were promised. When they were not
handed over it was held that this could be enforced by law because it was
understood that payment would be given for work undertaken.
So, if a request of the promisor carries an implication that payment will
be made for the act, the later promise can then be seen as just a fixing of
the level of payment. This could easily arise where an employee is asked to
undertake extra work. The exact amount may be settled when the work is
finished, but it is obvious that they will not be working for nothing!
Forbearance to sue
Abandoning a legal claim against someone may be good consideration. In
fact this is the basis upon which vast numbers of out-of-court settlements
are made, and arises very often in practice. The following are examples of
consideration arising from promises not to take a certain action.
Consideration 51that it could be enforced in court because, although the amount was
stated after the pardon was obtained, it was expected all along that
repayment of expenses would be made, and this could be seen as a
setting of the level of repayment.Was this amount a reasonable one for expenses (take into account the date
of the case)?Haigh v Brooks (1839)
A sum of money was to be paid in return for an agreement to abandon
a legal claim under a guarantee. It was held that this was enforceable,
even though there was some doubt over the validity of the guarantee.
So giving up a right to sue can be sufficient consideration, even if that
right is not certain, provided- the claim had some chance of success, and
- the person had otherwise intended to enforce the claim.
R v Attorney General(2003)
A promise of a member of an SAS patrol not to disclose details of his
work, e.g. in publishing the story of his experiences, was held to be
good consideration for a promise by the Ministry of Defence not to
return him to his original unit, with an associated reduction in pay.