privity of contract. In essence privity of contract means that only
parties to a contract can sue on it.
(g) Consideration is not valid if it is past, i.e. if the plaintiff’s act or
promise alleged to amount to consideration occurred before the
defendant’s promise. See Roscorla v Thomas (1842) 114 ER 496.
Turner, Note that the important point here is that only after the
sale was completed did X make the promise about the horses’
nature.
An apparent exception to this is the case of Lampleigh v Braithwaite
(1615) 80 ER 255.
The defendant who had killed a man, asked the plaintiff to try to obtain
a free pardon from the king. L incurred expense in his efforts to do this
and B subsequently promised to pay him £100 for his trouble. The
defendant failed to pay this amount and L sued on the promise. The
court, although the consideration for the promise appeared to be past,
found for the plaintiff on the grounds that the subsequent promise of the
$100 merely acknowledges the indebtedness and defines the amount of
compensation, which to that point, has not been defined.
(h) As a general rule consideration is not sufficient if the plaintiff
simply carrying out an existing obligation. The reason for this
rule is that the plaintiff must pay a price for the defendant’s
promise and this cannot be shown if the plaintiff is only doing
what he/she otherwise would have to do anyway. If the plaintiff
does something more than carry out an existing obligation then
this will amount to consideration.
In this context there are three classes of obligations:
(i)(ii) The performance of an existing public or legal duty;The performance of an existing contractual duty owed by the
plaintiff to the defendant; and
(iii) The performance of an existing contractual duty owed by the
plaintiff to a third party.
3.4 Existing Public or Legal Duty
Performance of an existing public or legal duty is not good
consideration. See Collins v Godfrey (1831) 109 ER 1040. Here because
A was under a duty to attend court anyway he did not ‘pay’ for B’s
promise to remunerate him for the attendance. However, if the plaintiff
does something more than he/she is required to do, then, something
more will amount to consideration.