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... for debt brought about by the commercialism of the English society. How then do common law principles stand by their place in todays time? What have been their long, standing defenses that have made them become worthy of respect and adherence to all these times?
Under the English common law the consideration that motivated parties to enter into an agreement also spelled out the doctrine of equity. (Kahn, Victoria, 2005). Because of the doctrine of equity, promises, whether verbal or written, become actionable. How then can consideration be treated as a promise that ought to be validated as an agreement or contract? The consideration for a particular promise exists where some right, interest, profit or benefit accrues (or will accrue) to the promise as a direct result of some forbearance, detriment, loss or responsibility that has been given, suffered or undertaken by the promisee (Currie v Misa). There exists reciprocity between the promise and the promise considering that the promisee can enforce a promise upon the promise unless he has given the thing he promised to give in exchange of the promise. The promise, on the other hand, will give to the promisee the things that are the subject of the promise that will in return benefit him in certain ways.
Failure of one of the parties to perform his or her part destroys the doctrine of consideration that binds parties in an agreement or contract, thereby causing breach of promise. (Advance Humanity - Health Education Equality & Protection for Every Child. (2005). More and more, the common law doctrine of consideration is becoming less and less relevant. Based on this, a contract cannot be changed without consideration. This is quite rigid and inflexible.
There are rules that govern the doctrine of consideration with corresponding exception to each rule and they are the following: Consideration must move from the promisee - but not necessarily to the promise; Consideration need not be adequate - but must be sufficient; Consideration must be current - it cannot be past; Performance of an existing obligation under a contract owed to the promise - is not consideration for a promise; Part payment of a debt - is not consideration for a promise to discharge the whole sum; Performance of a public law duty - is not consideration for a promise; Performance of a contractual obligation owed to a third party - does amount to consideration for a promise. Consideration must be given Again, a promise is enforceable if it is supported by a consideration and such consideration must move from the promise himself. This condition can be illustrated in the following example: In the case of Tweedle v. Atkinson, John Tweedle promised William Guy a sum of money to the child William Guy, and in turn William Guy promised John Tweedle that he would pay the child of John Tweedle when both children get married to each other. Unfortunately, William Guy failed to fulfill his promise of paying the son of John Tweedle upon the marriage of both children. In the given situation, and following the rule on doctrine of consideration, John Tweedle can not simply enforce the William Guy to fulfill his promise considering that the promised payment of sum of money was committed by William Guy unto John Tweedle's father and not to John Tweedle himself.
John Tweedle, in the given case had not actually given consideration for it it was his father who had done so instead. Consideration must be sufficient The sufficiency of a consideration is determined when it can be expressed in economic terms. If the promise is in any form not equivalent to economic terms, it is said to be not a real consideration for the promise, hence, the debt is unenforceable under the law. Consideration must be current There is a need for consideration to be current, meaning to say the consideration must be based on a promise currently made and not before a promise was made.
To illustrate this rule, a promisee can not promise a promise a sum of money if the promise has already performed the act that may be the subject of consideration. However, there are instances when past consideration can be considered good consideration. In the case of Pau on v. Lau Yiu Long, (1) The promisee must have performed the original act at the request of the promise; (2) It was clearly understood or implied between the parties that the promisee would be rewarded for doing the act; (3) The actual promise made, if made before the promisee provided the consideration, must be capable of being enforced, in other words giving rise to a legally binding contract. Performance of an obligation As a general rule, the performance of an existing contractual duty owed to the promise is not consideration for a fresh promise given by that promise.
This can be illustrated in the following example: In the case of Still v. Myrick, Still made an agreement with Myrick to bring Myrick through his boat to Baltic at? 5 per month. Apparently during the voyage, two men deserted Myrick and he promised Still to increase his wage if the latter would agree to return him to port and honor his contract in the light of desertions. After complying with this new agreement, Myrick refused to pay his increased wage even if he contended that he performed his duty. In the given case, the consideration of increasing his wage is not good consideration because Myrick's fresh promise of increasing his wages is not enforceable and the consideration Still had provided for it, that is, to bring Myrick to bring him back to port under a prior existing contract. However, there are exceptions to the general rule that performance of an existing contractual obligation owed to the promise - may amount to consideration for a fresh promise given to that promise where: (1) The promisee has done, or has promised to do, more than he was obliged to do under his contract. (See: Hanson v Royden); (2) before the fresh promise was made, circumstances had arisen which would have entitled the promisee to refuse to carry out his obligations under his contract. (See: Hartley v Ponsonby. ) Part payment of a debt Common law provides a general rule that a creditor who promises to discharge a debt in return for a fraction of payment is not providing consideration for the promise considering that such payment is just a fraction or partial payment to the obligation or contractual duty already owed by the debtor.
The debtor in this case is still liable for the whole amount; therefore, he cannot enforce the creditor / promise to accept less payment. However, there are exceptions to the general rule especially when debtor gives fresh consideration for the promise. For example in the Pinnels case: (1) If the promisee offers part payment earlier than full payment was due, and this is of benefit to the creditor; (2) If the promisee offers part payment at a different place than where full payment was due, and this is of benefit to the creditor; or, (3) If the promisee pays the debt in part by another chattel (note, however, that part payment by check, where full payment was due by another means, is not consideration (D & C Builders v Rees. ) Performance of a public law duty It is not a good consideration to use public law in return for a promise considering that public laws are said to be statutory laws and every one is duty bound to comply or follow the law. However, if the promise requires one to comply more than what the law is requiring him or her to do, then such promise requires performance based on a good consideration. Third party obligation Consideration for a promise requiring the performance of a contractual duty owed to a third party is said to be a good consideration. Indeed, trust plays a crucial role in the practice of promising.
The notion that promising is an invocation of bonds of trust holds the key to the practices main function and value, and consequently, to the binding force of promises. Sometimes, all that needs to be obtained in order for a bond of trust to be invoked through promise making is, simply, trust. Conclusion The adherence to English common law, particularly with regard to the application of contractual obligations and touching upon the doctrine of consideration, is a huge development in terms of dealing with the modern market setting. As more people express strongly their rights and liberty, and as developments become complicated and confusing, all the more there is a need to put order in the course of dealing with people.
Standing by the common law and its wisdom to put everything in order minimizes the tendency to create or spark conflicts and misunderstandings between and among people. Litigation's and endless court cases are minimized when laws are clear and understandable to men. For under common law, the intervention of the government and the practical lawmaking parties are limited to their respective roles while private interested parties themselves create their own laws depending on what they have agreed upon among themselves, for as long as such agreement is not unlawful or illicit or against public order or public policy. It is important to note that promises are normally effective in fulfilling their instrumental function when made under conditions of trust. Yet it is also important to remember that the kind of confidence that a promise is usually meant to create in the promisee the confidence upon which its instrumental usefulness hinges can sometimes be achieved without trust, just as a promise may sometimes have powerful reasons or motives to keep the promise which bear little on her trustworthiness. By contrast, promising can only fulfill its functions when these attitudes are in fact, believed to be, behind the participants actions and reactions.
The application of the English common law on contractual obligations speaks well of the respect due to agreements arrived at by contracting parties. This is indeed a manifestation that other than those laws passed by Congress or those promulgated by the Head of State, other sources of law, like the common law, can be vital instruments that can promote peace, justice, equality, freedom and fair play among people in every nation. Bibliography Advance Humanity - Health Education Equality & Protection for Every Child. (2005) Dictionary. Laborlawtalk. com, Accessed 21 August 2006 at: web Barnett, Randy. Symposium: Whither the Reliance Interest.
San Diego Law Review, Winter. 2001. Accessed 21 August 2006 at: web Bigelow, Melville Madison. A Treatise on the Law of Estoppel and its Applications and Practice. Estoppel. Wikipedia. Accessed 21 August 2006 at: web Central London Property Trust Ltd v.
High Trees House Ltd. Accessed 21 August 2006 at: web Consideration Under English Law. Reference. com Accessed 21 August 2006 at: web Consideration under English law.
Accessed 21 August 2006 at: web Estoppel. Wikipedia. Accessed 21 August 2006 at: web Kahn, Victoria. (2005) Wayward Contracts: The Crisis of Political Obligation in England, 1640 - 1674 /Chapter 2 Language and the Bond of Conscience-The Common Law: Magna Carta and Economic Contract. Princeton University Press 1905 - 2005, Accessed 21 August 2006 at: web Kill, Dori. From Promise to Contract. Towards a Liberal Theory of Contract, Oxford and Portland, Oregon 2003.
Krebs, Thomas. In Defense of Unjust Factors. Oxford University Comparative Law Forum. Accessed 21 August 2006 at: web Pinnels Case (1602). The K-Zone. Accessed 21 August 2006 at: web Wilken, Sean.
Waiver, Variation and Estoppel. John Wiley & Sons, 1998. England.
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Research essay sample on English Common Law Third Party
