Property Cans: Section 2: Performance of an Existing Duty

Harris v. Watson
For D. P furnished no consideration for what they were already bound to do under contract. To hold against D would be against good public policy
Dempster v. Bauld (1905) NS
Ratio: Pre-existing duty is not sufficient consideration for a new contract, unless something is promised that is over and above what the party is already bound to do under contract.
Foakes v. Beer (1994) HL
Ratio: Part payment of a debt is not good consideration. Accord (agreement) & satisfaction (consideration) is required.
Bank of Nova Scotia v. Maclellan (1977)
Ratio: Lesser amount, plus something else of value, can discharge a larger sum. (Limits rule in Foakes v. Beer).
Hirachand v. Punamchand & Temple (1911) KB
Ratio: Part payment of a debt by a third party will extinguish that debt.

There is an exception to the rule in Foakes with respect to arrangements between a debtor and his or her various creditors. Where the agreement is made with a third person the creditor’s promise is enforceable.

Effective Accord and Satisfaction
– Seal
– Additional or New Consideration (hawk, horse, robe tomtit or peppercorn)
– Composition of Creditors
– Payment by third party
– Estoppel
– Mercantile Amendment Act (ONTARIO)
– Part Performance
– Expressly accepted or
– Rendered in pursuance of an agreement for that purpose (probs. around)
Kaulbach v. Eichel (1930) NSSC
Ratio: a lesser sum cannot be given in satisfaction of a greater sum, although if something else is given in addition to the lesser sum, it will be seen as sufficient consideration to support a promise to extinguish the debt even if value is less than the existing debt.
Vanbergen v. St. Edmunds Properties Ltd. (1933) KB
Ratio: Location of payment, or method of payment, can constitute consideration where it was not bargained for initially by the parties and it acts as a benefit/detriment/extra to the contract.
Foot v. Rawlings (1963) SCC
Ratio: If a creditor accepts payment in a different form, like a negotiable instrument, it will amount to consideration for a promise to extinguish a debt.
D & C Builders Ltd. v. Rees (1966) QB CA
Ratio: Threatening the owed party to “take a certain amount or get nothing” is to exercise duress and court will regard it as unconscionable; therefore not “true” accord.

Also, no difference between a cheque and cash, for purposes of consideration.

Shadwell v. Shadwell (1860) NS
The marriage could be a loss sustained by P (promisee) or a benefit to Uncle.
Ward v. Byham (1956) CA
Ratio: The promise to perform or the performance of an existing statutory duty and no more can be good consideration since it is a benefit to the promisee.
Williams v. Williams (1957) Eng CA
Ratio: A promise to perform an existing duty was good consideration for a new promise “as long as there is nothing in the transaction which is contrary to public interest.”
– This is essentially an affirmation of Ward.
Glasbrook Bros. Ltd. v. Glamorgan County Council (1925) HL
Ratio: The introduction of fresh consideration (‘superfluity’) is sufficient consideration even if one party is bound by statute to provide such a type of service.
? Case suggests bound to pay public servants when they go the extra length
Roscorla v. Thomas (1842) QB
Ratio: A promise must be co-extensive with the consideration. Generally, consideration past and executed will support no other promise than as would be implied by law.
Spencer v. Hemmerde (1922) HL
Ratio: An acknowledgment of an existing duty is a new promise and the old debt serves as consideration for the promise.
Rex v. Rash (1923) Ont. SC
Ratio: Contracts made with minors are valid only where the minor chooses to honour the contract or where the contract is for the necessities of life.

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