BetterLawNotes-5 (2)

CONTRACT LAW

Consideration may comprise forbearance, or a promise to forbear (ie, refrain), from a certain course of conduct. Consider the following cases:

White v Bluett (1853) 23 LJ Ex 36

A father promised not to enforce a promissory note in his favour in return for his son’s promise not to bore him with complaints about the father’s plans for the distribution of his estate. Held: the father’s promise was not enforceable as the son had not provided sufficient consideration.

‘The son had no right to complain for the father might make what distribution of his property he liked; and the son’s abstaining from doing what he had no right to do can be no consideration.’ (Pollock CB).

Hamer v Sidway (1891) 124 NY 538

An uncle promised his nephew that if the nephew would ‘refrain from drinking liquor, using tobacco, swearing, and playing cards or billiards for money’ until his 21st birthday, he would pay the nephew $5,000 at that time. The New York State Court of Appeals held that the promise was enforceable.

‘It is sufficient that he restricted his lawful freedom of action within certain prescribed limits upon the faith of the uncle’s agreement, and now having fully performed the conditions imposed, it is of no moment whether such performance actually proved a benefit to the promisor, and the court will not enquire into it; but were it a proper subject of inquiry, we see nothing in this record that would permit a determination that the uncle was not benefited in a legal sense.’ (Parker J at 546).

It is hard to reconcile these two cases. with each other. It is suggested that the approach in Hamer v Sidway is to be preferred. While in one sense it may be correct to say that the son in White v Bluett had no right to complain, in the sense that the father had no obligation to listen to or respond to the complaints, in another sense the son did have such a right: the son was at liberty to complain and the father had no right that the son should not complain to him.

The next case establishes that that where the consideration comprises a promise by the promisor not to pursue a claim or enforce a right, such a promise will not amount to good consideration for a corresponding promise (such as a promise of payment), if the promisor is not acting in good faith.

Wade v Simeon (1846) 2 CB 548

The claimant sued the defendant for £2,000. The defendant promised to pay this amount by a certain date if the claimant postponed the proceedings. The claimant did so but the defendant failed to pay. The Court of Common Pleas held that there was no consideration for the defendant’s promise to pay as the claimant knew that his original action was groundless and was bound to fail.

‘the plaintiff admits that he had no cause of action against the defendant . . . and that he knew it. It appears to me, therefore, that he is estopped from saying that there was any valid consideration for the defendant’s promise.’ (Tindal CJ at 564).

Cook v Wright (1861) 1 B & S 559

The claimant agreed not to take proceedings against the defendant if the defendant promised to make an agreed payment, by means of promissory notes, in respect of a statutory liability to contribute to street improvements. The defendant was not liable to make any contribution although the claimant thought he was. The Court of Queen’s Bench held that the claimant had given good consideration for the defendant’s promise to pay.

‘It appeared on the evidence that [the defendant] believed himself not to be liable; but he knew that the plaintiffs thought him liable, and would sue him if he did not pay, and in order to avoid the expense and trouble of legal proceedings against himself he agreed to a compromise; and the question is, whether a person who has given a note as a compromise of a claim honestly made on him, and which but for that compromise would have been at once brought to a legal decision, can resist the payment of the note on the ground that the original claim thus compromised might have been successfully resisted . . .’ (Blackburn J at 568).

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