It is perhaps easier to see the concept of past consideration in the following,
more recent, case.
So, if the only act or promise which could be consideration is promised
after the other party’s act is executed, then there is no binding contract,
because past consideration will not support a contract.
However, if an act is done at the request of the promisor, and it was
understood all along that payment would be made eventually, or if it was an
act for which payment could reasonably be implied, then consideration
which is apparently past will be valid. This is well illustrated in the
following seventeenth-century case.
50 Contract law
Roscorla v Thomas (1842)
The sale of a horse had taken place, the horse being exchanged for
money in the usual way. Some time after the sale, the seller told the
buyer that the horse was ‘sound and free from vice’. It later became
apparent that the horse was not as described, but vicious and
unmanageable. The buyer argued that the assurances given by the seller
that the horse was ‘sound and free from vice’ went with the price paid
by the buyer. However, the court held that the assurances were given
later and could not be connected to a price already paid for the horse.
The payment had already taken place, and was therefore past
consideration, and not valid.Re McArdle (1951)
Members of the McArdle family made alterations to a house to
accommodate an elderly relative. After the work was completed, other
members of the family visited and were so pleased with the alterations
that they offered to pay those who had done the work. Some time later
the money had not been handed over, so those who had done the work
sued for the amount promised. It was held that they could not insist on
payment because the work had been done before the promise of the
money was made. It was therefore past consideration and not valid.Does this decision bring about a just outcome for the family?Lampleigh v Braithwait (1615)
A pardon was obtained from the king for a friend who had killed
someone. The friend was so delighted that he promised £100 for the
trouble of obtaining the pardon. When this was not paid, it was held