CHAR_A01.PDF, page 1-18 @ Normalize ( CHAR_A01.QXD )

Legally, this must be a borderline case, and shows that very little ‘extra’ is
needed to make payment enforceable, if the court really want to hold a
contract valid. In practice there must be little difference in clarity between
keeping a child ‘well looked after and happy’ and ‘ceasing complaints’,
which was rejected as consideration in the case seen earlier of White v
Bluett, and it raises the question of what the courts are really looking for.

Performance of an existing contractual duty

If a person has already made a contract to do something, this same duty
cannot generally be used again as consideration to the same person. Two
shipping cases can be used to illustrate this.

There may again have been a certain amount of sympathy with the captain
of a ship, trying to recruit sailors in difficult circumstances. However, the
decision went the other way in the following case.

Consideration 53

at that time a legal obligation on a mother to maintain her child (this is

managed differently now). The father defaulted on the payments and

the mother claimed that a contract existed for the payment. The father’s

consideration was obviously the promise of the money. The father

argued that the mother had not given any consideration since she was

already obliged to maintain the child by law. However, it was held that

in keeping the child ‘well looked after and happy’ she was doing more

than simply maintaining, which was the legal obligation. The payment

of the money was therefore enforceable.

Stilk v Myrick (1809)

Two sailors deserted ship during a journey to the Baltic. Eight of the

sailors who were left agreed with the captain to share the wages of the

deserters between them in exchange for sailing the ship shorthanded. On

arrival at the port the money was not paid, so the sailors sued the captain.

It was held that the sailors had done no more than their contractual duty

already owed to the captain in their initial agreement to sail the ship.

With which party, in this case, do you think the courts would have the

greater sympathy?

Hartley v Ponsonby (1857)

Here 17 sailors deserted ship out of a crew of 36, and out of those

sailors left, only a few were experienced seamen. A similar agreement