Performance of existing duty mean the party must performance the duty that promised to exchange with something that promised by another party; but not all the performance of existing duty can constitute consideration. If the performance is a public duty, the performance cannot constitute consideration. Contrast, if the performance is does more than the duty the consideration cannot be reward.
Consideration is one party who willing to exchange something value for value, it must moving from promisee to promisor. According to Sir Frederick Pollock, consideration is “an act of forbearance of one party or the promise there of is the price for the promise of the other is bought and the promise thus given for value is enforceable.” There are two types of consideration: executor consideration which means the party already promises but one of the parties not yet performed and executed consideration mean once the party had promised the party will performed until the end at the time.
Social/ Domestic agreement
According to the orthodox vies that, performance of an existing duty should not constitute consideration, but it is base on certain circumstances such as social/domestic agreement and commercial/public agreement. There are some cases in social/domestic agreement shown that some performance of an existing duty does not constitute consideration but some in some situation it constitutes consideration.
In the case of Balfour v Balfour 1919 show that performance of existing duty should not constitute consideration in social situation. In this case, the husband had orally promises the wife to pay her $30 a month while he returned to Ceylon but both of them divorced and the husband did not pay the allowance for his wife. The court says that “…the husband needs not to pay the wife because when the husband promise to give the wife allowance is before divorced therefore it was a social agreement which is not a legal contract.”
In the other way, the case of Merritt v Merritt 1970 shown that performance of existing duty can constitute consideration. the husband left his wife for another woman therefore after that they discuss about the future arrangement of the house. The husband promises the wife to give her wife monthly allowance to help her to pay the loan of the house and after paying he will transfer the house to her. The wife written down what her husband promise and let him sign, but after the loan is finish paying the husband refuse to transfer the house to her. In this case the court says that “…the wife got the house because the arrangement was legal binding contract.” The husband are trying to use social situation to say that the agreement should not be biding but the court say that “… when both parties are separated or about to separate there are not social situation.”
Using the case of Balfour v. Balfour compare with Merritt v. Merritt, in Balfour case there are no new consideration is because husband give the promise to his wife is before they divorce which is in the social situation but after that the husband and wife already divorced therefore the husband need not to performance the promise; but in the case of Merritt the husband and wife is about to separate therefore there are not a social agreement and the husband had sign the written agreement that promise to transfer the house to the wife if the wife had performed the term which is paid off the loan.
Not all the commercial agreement states that performing an existing duty should constitute consideration there are some circumstances that cause the performance of an existing duty cannot constitute consideration.
This can be seen in the case of Collins v Godefroy 1831 show that the performance of existing duty should not constitute consideration. In this case the court says that “…the plaintiff have an existing duty to attended court but not pay to attend the court therefore it is not consideration that the defendant need not to enforce the promise.”
Besides that, in the case of Stilik v Myrick 1809 also states that performance of existing duty should not constitute consideration. In this case, the captain promises the crew to give extra wages for the crew which less two members to worked the ship home. But the court make decision that “…the promise of extra wages was not enforceable because the crew did not do more than their existing duty therefore there are no any consideration for the new promise therefore the crew could not get the extra wages.” The reason of the court making this decision is because the number of the crew is only less two people who not bring big effect and it circumstances of the working environment did not have big changes.
In the case of Glassbrook v Glamorgan CC 1925, the defendant require the police to provide extra protection, but the local inspector said that: “the existing mobile force was sufficient” but he still agreed to provide 70 men with exchange for the pay of the services, but the defendant did not pay for what he promise and counterclaimed for the cost of feeding and housing the police. Firstly, the courts say that “…the police have existing duty to so, therefore the defendant does not need to pay for the extra.” Finally the defendant need to pay the amount that promise because the court say that “…the police had done a special service that more than their existing duties which they need not to do so if does not have any payment.” In this case, the court make such decision is because the existing duty of the police does not need to give extra protection which is not under their original contract. They do so is because of the defendant require for it and promise to pay more, therefore the court decide that the defendant must follow what are promised.
There is another case which is Hartley v Ponsonby 1857 show that performance of existing duty should constitute consideration, because a ship which need 36 crew to worked but the number of crew reduce to 19, therefore the 19 crew are promised to pay extra if they ship back to England. The court says that “…the defendant must pay the extra wage because the crew was reduced and the circumstance is changes to become more dangerous while doing the duty. Therefore, the captain has no right to demand for it with no extra payment so that the original contract is ended and new consideration comes in and the term of the new contract that agreed.” In this case, the court make this decision because the circumstances of the working environment had change and the worker need to do more than their existing duty which is ratio of 2:1 therefore the court say that the performance of an existing duty should constitute consideration.
In the case of Collins v Godefroy 1831 and Stilik v Myrick 1809 show that the performance of an existing duty should not constitute consideration but in the case of Glassbrook v Glamorgan CC 1925 and Hartley v Ponsonby 1857. It is because in Collins v. Godefroy and Stilik v Myrick the court say the party have the existing duty to performance it therefore there are no any new consideration in this two case. For example in Collins v Godefroy 1831 the plaintiff going to the court is a public duty which not consideration. In order way, cases of Glassbrook v Glamorgan CC 1925 and Hartley v Ponsonby 1857 shown that the performance of existing duty constitute consideration, it is because they performance the duty that need them to put more effort. For example in Hartley v Ponsonby the number of the crew less almost half therefore the crew need to do more than their own effort to complete the duty therefore the performance are constitute consideration.
In my opinion, I think that performance of exiting duty should constitute consideration because if a party put more effort to do something that require by another party who promise to pay reward, he/she must get what suppose to get or the promises by the party. If the party does not did what he/she promise than is unfair for the party who done the performance, but sometime will also depend on the circumstances. For example, in Stilik v Myrick 1809 there are less only 2 person of crew which not affect much on the environment and performance compare with Hartley v Ponsonby 1857 which less 19 of crew member which will bring a big effect on the working environment and the performance. Therefore, in Stilik v Myrick 1809 the performance of an existing duty did not constitute consideration but in Hartley v Ponsonby 1857 the performance are constitute consideration.