发布时间 : 星期三 文章英国合同法复习资料更新完毕开始阅读
Held: P could not get extra wages. He did what he was originally contractually bound to do Exception:
Key principle: The Stilk v Myrick rule does not apply where the promisee does something more than his existing contractual duty Hartley v Ponsonby [1857] 7 EB 872 (p235) Fact: Nineteen out of thirty-six crew of a ship deserted. Because of that, the rest of the voyage had become extra hazardous. In that situation, the captain of the ship promised to pay the remaining crew members extra money to sail the ship back home.
Held: Since sailing the ship in such dangerous conditions was not a term of the seamen‘s pre-existing contract, the seamen provided consideration for the extra hazardous work. Practical benefit issue Williams v Roffey Bros & Nicholls (Contractors) Ltd. [1991] 1 QB 705 (p236) Fact: Ds contracted with a third party to refurbish a block of flats for the third party. Ds then contracted Ps to do carpentry works in a number of flats. Subsequent to the commencement of the work, Ps found themselves in financial difficulties and were unable to complete the work on time. Ds contract with the third party had a penalty clause for late completion of the
refurbishment. Ds knowing Ps financial problems voluntarily promised to pay Ps an additional ￡575 per flat for their carpentry works. Ps were able to complete a further 8 flats. However, Ds refused to honour their promise for the extra payment.
Held: Where a promise was made to the promisee for extra payment for doing the same thing which the promisee was already bound to do under his contract with the promisor, the promisee‘s subsequent promise could be good consideration if the promisor acted voluntarily without any economic duress or fraud. The court also said that one should not be too technical about consideration and pointed out that in this case, Ds had obtained a ―practical advantage‖.
Forbearance in performance of an existing duty to the same promisor
Key principle: The general rule that acts or forbearance in the performance of an existing
contractual duty owed to the promisor does not constitute consideration applies to the situation where the debtor pays a lesser sum to the creditor in satisfaction of a larger. In this case, the creditor is not bound by his promise to accept a lesser sum. Pinnel‘s Case (1602) 5 Co Rep 117a (p246) Fact: Cole paid Pinnel ￡5 2s 6d in discharge of Pinnel‘s debt of ￡8 10s. Pinnel, however, said he was entitled to the full amount of ￡8 10s.
Held: Pinnel had a good claim. The court stated:―that payment of a lesser sum on the day in satisfaction of a greater cannot be any satisfaction for the whole, because it appears to the judges that by no possibility a lesser sum can be satisfaction to the plaintiff for a greater sum: but the gift of a horse, hawk, or robe, etc. in satisfaction is good for it shall be intended that a horse, hawk, or robe, etc., might be more beneficial to the plaintiff than the money… the payment and acceptance of parcel before the day in satisfaction of the whole would be a good satisfaction….” Foakes v Beer (1884) 9 App Cas 605 (p245) Fact: Mrs. Beer obtained a judgment against Dr. Foakes in the sum of ￡2090 19s. After some time, Dr. Foakes approached Mrs. Beer and asked for time to pay the debt. They signed an agreement that if Dr. Foakes paid ￡500 immediately and the balance by specified instalments, Mrs. Beer would not take any proceedings against Dr. Foakes on the judgment. After Dr. Foakes had paid all the debt, Mrs. Beer claimed ￡360 as interest on the debt.
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Held: Mrs. Beer was entitled to the interest claimed because Dr. Foakes did not give any consideration for exemption from payment of interest (i.e. ￡360) Vinson Engineering Ltd. v Kin Shing Engineering [2008] 5 HKC 441, AC Fact: P was ordered to pay $400,213 as judgment debt. It was claimed by P that P reached an agreement with D that that sum would be paid by D by two instalments of $200,213 and $200,000 respectively. D, however, presented a petition to wind up P. When sued by P for
breach of agreement, D argued that even if there was an agreement to allow P to pay the sum of $400,213 owing to D by instalments, the agreement was not enforceable.
Held: A promise not to sue for an existing debt in return for an agreement to pay by instalments was unenforceable for want of consideration for P in such cases did not suffer any legal
detriment in performing what P was bound to do in law. D could not be stopped from taking up bankruptcy proceedings. Re Selectmove Ltd. [1995] 1 WLR 474 (already discussed in the context of offer and acceptance) The Court of Appeal in this case refused to apply the principle of Williams v Roffey Bros where the creditor‘s promise was not to accept less from the debtor but late payment (in this regard, the case is similar to Foakes v Beer, supra)
Exceptions to the rule in Pinnel’s case
First, the rule does not apply where the creditor‘s claim is disputed by the debtor in good faith. Second, the rule cannot be applied where the claim is for an unliquidated sum (i.e. not for a fixed sum of money).
Third, it does not apply where the lesser sum is paid by a third party. Hirachand Punamchand v Temple [1911] 2 KB 30 (p252) Fact: A son borrowed money from the plaintiffs and could not pay them. The plaintiffs then contacted the son‘s father. The father offered a lesser sum than the sum owed by the son but in full satisfaction of the debt.
Held: Acceptance of the father‘s cheque extinguished the debt even though for a lesser amount. The creditor could not sue the debtor for the balance, for it would be a fraud on the third party (father).
Fourth, the rule in Pinnel‘s case doesn‘t apply where the debtor has several creditors and they agreed amongst themselves to take a lesser sum.
Fifth, the rule in Pinnel‘s case does not apply where the debtor makes early payment of the money due.
Sixth, the rule in Pinnel‘s case doesn‘t apply where the debtor, at the creditor‘s request, makes payment at another place. Note, however, that where the creditor accepts payment of money at another place, solely for the benefit of the debtor himself, the rule in Pinnel‘s case applies. Vanbergen v St Edmunds Properties Ltd [1933] 2 KB 223 (p250) Fact: P owed Ds ￡208 odd for costs under a judgment and order. P had to pay this sum of money by 7 July 1932. Since P was going down to Eastbourne and was not sure if he would be back by 7 July 1932, Ds agreed that if P paid ￡208 at Eastbourne, Ds payment would satisfy all sums that P owed Ds and the bankruptcy notice that he had issued to P would not be served on him. P paid ￡208 on 7 July 1932 but Ds still served a bankruptcy notice on P.
Held: Ds‘ promise for the variation of the place of payment was not supported P‘s consideration. Ds, by accepting the payment at another place, did not reap any extra advantage; there was nothing moving to Ds which would be deemed to be consideration
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Seventh, the rule in Pinnel‘s case doesn‘t apply where the doctrine of equitable estoppel (to be discussed later) provides a defence to the debtor.
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Lecture 9 Promissory and proprietary estoppel
Promissory and proprietary estoppel
Key principle: estoppel is a rule of evidence which prevents a person denying a fact from which he had previously asserted to be ture. Estoppel by representation
Key principle: A person (the representor) making a clear and unambiguous representation of existing facts to the representee is prevented from denying the truth of the statement if the representee acted upon the statement to his/her detriment.
a) It may be emphasized that the language used by the representor must have been definite and precise, showing clearly that the representor would not enforce his/her strict legal rights. b) there must be a nexus between representor‘s promise and the representee‘s act. Jorden v Money (1854) 5 HLC 185 (p257) Fact: P became entitled to a bond for ￡1200 which was owed by D to P‘s deceased brother. P promised that she would never enforce the bond. But in breach of this promise, P sought to enforce the bond.
Held: Since P‘s assurance (representation) was not one of fact but of future intentions, P could not be prevented from enforcing the bond and D could not rely on the doctrine of estoppel by representation.
The doctrine of promissory estoppel
the origins of the doctrine of promissory estoppel Hughes v Metropolitan Railway Co. (1877) 2 App Cas 439 (p259) Fact: A lease contained a covenant requiring the lessee to repair upon notice from the lessor, failing which the lease could be forfeited. The lessor gave 6 months‘ notice to the lessee (the railway company) to carry out repairs on the demised premises. The lessee replied by offering to sell back its interest in the property for ￡3000. The lessor did not reject the lessee‘s offer but questioned the high price asked by the lessee and enquired whether the price was negotiable. The lessee did not agree to lower the price for selling its interest in the lease. On the other hand, the lessee completed the repairs within six months of the lessor‘s this letter but the completion of repair was not done within six months of the original notice by the lessor.
Held: (1) There was an implied promise by the lessor that the repairs might not need to be carried out if the negotiations were successful and the period of notice would not start to run. (2)The lease could not be forfeited. (3)Equity would suspend the running of time while the negotiations to buy back the lessee‘s interest in the lease continued and it would start running again, at the earliest from the time the lessor asked the lessee whether the lessee would accept a lower price. Central London Property Trust Ltd v High Trees House Ltd 1947 Fact: In 1937 the plaintiff granted the defendant a 99-year lease of a block of flats at a rent of ￡2,500 a year. When the Second World War broke out in September 1939 the defendant had not fully sub-let all the flats, and so was unable to pay the annual rent. The plaintiff agreed that the rent should be halved as from the beginning of the lease. By the beginning of 1945 the flats were fully let. The plaintiff initially claimed all the arrears, but the case was heard on the basis that the full rent should be paid from July 1945.
Held: the plaintiff was entitled to the full rent as from July 1945. By then the conditions prevailing when the promise was made, had completely passed away.
(1)The full rent for the last two quarters of 1945 after Ps‘ notice was recoverable.
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