BetterLawNotes-5 (2)


Suppose that D promises to give C £100 because C has brought D’s broken-down car back from London to Brighton. Can C enforce the promise? Probably not. Any consideration for the promise would appear to be in the past. There is therefore no bargain or exchange. The act which might constitute the consideration (the bringing back of the car) preceded the promise: as such it does not constitute the ‘price’ for the promise.

Eastwood v Kenyon (1840) 11 Ad & E 438

A guardian borrowed money to pay for a young girl’s education. Later, the girl’s husband promised the guardian to pay the money back. The Court of Queen’s Bench held that the husband’s promise was unenforceable.

Roscorla v Thomas (1842) 3 QB 234

S sold a horse to B. S subsequently warranted that the horse was sound and free from vice. It wasn’t. The Court held that the warranty was unenforceable as the consideration provided by B, being the purchase itself, was past consideration.

Re McArdle [1951] Ch 669

Under the terms of their father’s will a number of children were entitled to a house after their mother’s death. One of the children and his wife lived in the house during the mother’s lifetime and the wife carried out various improvements to the building. Subsequently the children promised to repay the wife a certain sum in consideration of the alterations and improvements to the house made by the wife. The Court held that the promise by the children was unenforceable as the consideration for it was past.

But suppose in previous example that before C brought the car back, D had said to her: ‘I really need my car back, if you get it to me, I’ll see you right’. Assuming that C brings the car back, she will be able to enforce D’s subsequent promise of £1,000. This is because D can be said to have ‘requested’ that C bring the car back before she did so. As such the request precedes the act which constitutes the consideration. The old case of Lampleigh v Braithwait established that in such a case the subsequent promise of payment may be enforceable.

Lampleigh v Braithwait (1615) Hob 105

Braithwait, having killed a man, asked Lampleigh to ride to Royston to obtain a pardon for him from the king, James I. Lampleigh secured the pardon and Braithwait promised him £100 for his trouble. Held: the promise of payment was enforceable as the services had been performed at Braithwait’s request. 

‘a mere voluntary courtesy will not have a consideration to uphold an assumpsit. But if that courtesy were moved by a suit or request of the party that gives the assumpsit, it will bind: for the promise, though it follows, yet it is not naked, but couples itself with the suit before . . .’ (Hobart CJ at 106).

The principle from Lampleigh v Braithwaite was applied by the Court of Appeal in the following case: 

Re Casey’s Patents, Stewart v Casey [1892] 1 Ch 104

Stewart and Charlton were the joint owners of certain patents. They wrote to Casey as follows: ‘In consideration of your services as the practical manager in working both our patents . . . we hereby agree to give you one-third share of the patents, the same to take effect from this date.’ The Court of Appeal held that the promise was enforceable.

‘the fact of a past service raises an implication that at the time it was rendered it was to be paid for, and, if it was a service which was to be paid for, when you get in the subsequent document a promise to pay, that promise may be treated either as an admission which evidences or as a positive bargain which fixes the amount of that reasonable remuneration on the faith of which the service was originally rendered.’ (Bowen LJ at 115-116).

More recently, the ‘exception’ to the past consideration ‘rule’ established in Lampleigh v Braithwaite was summarised by Lord Scarman in Pau On v Lao Yiu Long [1980] AC 614, 630:

‘An act done before the giving of a promise to make a payment or to confer some other benefit can sometimes be consideration for the promise. The act must have been done at the promisor’s request, the parties must have understood that the act was to be remunerated further by a payment or the conferment of some other benefit, and payment, or the conferment of a benefit, must have been legally enforceable had it been promised in advance.’

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