INTRODUCTION

Judicial precedent is the bedrock upon which the common law is based known also as stare
decisis or the standing by previous decisions or not disturbing settled points 1. The doctrine
articulates that once the material facts of a decided case are established by applying the law that
point of law already determined must be applied to that and all future cases containing the same
material facts2. This ensures a common application of the law hence the common law however
this construct has not been without problems. One such situation is Stilk v Myrick3 and Williams
v Roffey Bros & Nicholls (Contractors) Ltd 4 where it would appear as if the material facts were
the same but the decision, based on the application of the law, varied with historical consensus.
This particular circumstance is not alien to contract law or the common law in particular. What
has occurred in this instance, however, is a major shift in the interpretation of the doctrine of
consideration to the extent that it could possibly rewrite all that is known and accepted within the
substantive law of contracts. This essay will present four arguments in an effort to determine
whether Williams v Roffey Bros & Nicholls (Contractors) Ltd [1990] was wrongly decided
resulting in serious impairment of the rule articulated in the landmark case of Stilk v Myrick
(1809). The essay will set the background, present the concept of a practical benefit, investigate
the impact of precedent, a determination is made as to whether Williams v Roffey Bros &
Nicholls (Contractors) Ltd [1990] All ER 512 was wrongly decided and the essay is concluded.

Rose Marie Belle Antoine

Black's Law Dictionary, p. 1059 (5th ed. 1979).

(1809) 2 Camp 317

[1990] All ER 512

BACKGROUND
Consideration as an act, forbearance or promise by one party to a contract that constitutes the
price he buys the promise of another 5. While a concise enough effort it fails to address the reason
for the concept. That illusive reason is found in an act or forbearance of one party or the promise
thereof is the price for which the promise of the other is brought and the promise thus given for
value is enforceable6. It is the promise for a promise or that something of value in the eyes of the
law that gives rise to enforceability, according to Thomas v Thomas7 that is of interest to this
essay. This section chronicles the doctrine highlighting its development with reference to major
cases.
The evolution of consideration was traced to the twelfth century establishing that the doctrine
was widely practised. The argument in 1890 was that:
The doctrine of consideration was apparently unknown to the Roman jurists. It came into
English law purely as a matter of accident, as an incidental consequence of a special manner of
proof; and it was not until it was familiar in this capacity that men perceived its value as a
doctrine of substantive law8.
The argument at first instance is not unsound for it is that special manner of proof that has
engaged jurist throughout the centuries. Consider offer defined as a willingness to contract on
specified terms with the intention to be bound once accepted by the person to whom it is
addressed also consider acceptance as a final unchallenged expression of assent to the terms of
5

Sir Frederick Pollock, Principles of Contracts, 8th Edition, Stevens & Sons Ltd.
Sir Gnter Trietel in Land Marks of Twentieth Century Contract

(1842) 2 QB 851

Ibid 6

an offer. What the doctrine does is ensure persons have decided to contract after discussion and
not on impulse. What the essay observes are defined borders within which economic transactions
take place with clear positions when there is dispute but is it as clear as it appears?
In Stilk v Myrick a ships' captain promised his remaining crew that the wages of deserters would
be divided amongst those who remained. The court held that the promise to pay by the captain
was not enforceable because the crew had not provided any further consideration. The crew was
already committed to complete the voyage under the initial contract. In arriving at the verdict
some academics argue public policy because it would have prevented a dishonest crew from
blackmailing the captain into agreeing to make extra payments 9. This essay has no intention of
disputing this possibility but offers the alternative that the right decision was made for the wrong
reason with possible implications going forward. In Hartley v Ponsonby the crew had a large
number of desertions as compared to two in Stilk v Myrick. It was held the crew could recover
an extra 40 because the promise to pay had the necessary consideration of acting above and
beyond the initial contract. This exception, argues this essay, suggest a wrong decision being
made for the wrong reason because Stilk v Myrick was decided based on public policy and not
the doctrine of consideration.
Partial payments in full satisfaction for a debt owed have fallen within the doctrine. In Pinnel's
Case the defendant had not provided any consideration for the plaintiffs promise not to sue on
partial payment accepted. Sir Edward Coke10 had stated that:

Jill Poole Textbook on Contract Law (7th ed.). Oxford University Press

10

[1602] 5 Co. Rep. 117a

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 a satisfaction
to the plaintiff for a greater sum.
Lord Blackburn in Foakes v Beer11 expressed doubts with this reasoning but nevertheless
concurred with the judgment that
Men of business ... do every day recognise and act on the ground that prompt payment of a part
of their demand may be more beneficial to them than it would be to insist on their rights.
The position according to the aforementioned authorities seems to be maintenance of the status
quo essentially any attempt to vary a contract will lack consideration unless that consideration is
new or different as compared to the proffered promise.
This essay argues that Pinnels well as Foakes and Beer were rightly decided for the right reason
leaving the outstanding matter of the issue that has crept into the doctrine to offer an alternative
interpretation. To this end the essay turns to the concept of the practical benefit for an answer.

11

[1884] UKHL 1

A PRACTICAL BENEFIT
The doctrine of consideration is seen as a pillar denoting contractual intent in the common law
however any attempt to remove a pillar will have redefining consequences for that which stands
on the pillar namely contractual enforceability. Williams v Roffey Brothers and Nicholls
(Contractors) Ltd is such a redefining moment with possible impairment for contractual liability
in future cases. This section explores a possible reason for this redefinition and how this reason
might be interpreted in contract law.
There was, prior to the decision in Williams v. Roffey, resistance to the concept of the practical
benefit option simply because in practice the promisor received a benefit without the
countervailing detriment, forbearance, loss incurred by the promisee as per Curie v Misa 12.
Without an unequivocal discharge of the original contract essentially what remains is a gratuitous
promise that is not enforceable in court13. Given the long standing principles of this element of
contract why would there be a need to disturb the fundamentals. It is accepted there is a need to
have consideration to form or to vary a contract however this essay recognises the contribution
of where in comments attributed to Williams v Roffey articulated an effort to widen what counts
as consideration based on an increasing pact14, that is where one agrees to pay for what he is
already contractually entitled to receive only. Over the years a slow compromise has been
allowed to creep into the doctrine to determine if there is consideration. But the point is that they
aren't separate rules of law acting individually what they are trying to establish is the presence of
consideration. Examine the case of past consideration; the general rule is that giving
consideration for something that has already been done is not good consideration, unless there
12

(1875-76) LR 1 App Cas 554,

13

Balfour v Balfour 1919] 2 KB 571

14

PS Aityah An Introduction to the Law of Contract, 5th ed.

was an understanding that the party undergoing a detriment would later be compensated for it
which is an exception see Lord Scarman in Pao On v Lau Yiu Long15.
It would appear as if Williams v Roffey widens the scope of consideration. In other words an
exception has been developed in light of circumstances that have on occasion presented in the
past with questionable results. This essay suggests that facts tend to show Roffey doesn't
compromise Stilk but highlights latent issues not addressed at the time in Stilk. Examine the
following Roffey agreed to pay more not to increase his strict legal rights, but to obtain a
practical benefit that benefit in nominal terms trade of higher penalties of not completing the
contract as compared to the marginal increase to the sub contractor. The case creates an
exemption certainly not unheard in the area of contract law for the correct interpretation of the
facts as presented. It would seem that, to a large extent, the two cases do not contradict but the
true test is applied in the cases of equal factual purity are adjudicated post the judgement a
situation for the doctrine of judicial precedent.

15

[1979] UKPC 17

DISTINGUISHING PRECEDENT
In Stilk v Myrick Lord Ellenborough maintained the rule of consideration exerting that an
individual was bound to do a duty under an existing contract and that duty could not be
considered valid consideration for a new contract. This seems a reasoned position given the
established rule of consideration but in relying on Harris v Watson 16 he agreed with the decision
but disagreed with the ratio. This introduces the complexity of a case being rightly decided for
the right reason, rightly decided for the wrong reason, wrongly decided for the right reason and
wrongly decided for the wrong reason. This section will attempt to determine into which
category the decision of William v Roffey falls by applying academic theory and method to draw
a conclusion.
It has become generally accepted practice by judges not to overrule old decisions what is
preferred is gradual incremental change over an extended period of time rather than instant
changes17. This, it is believed, fosters stability, continuity and certainty in the common law not
wishing to disturb existing arrangement freely entered into by individuals 18. While in a near
perfect society this might be possible judicial precedent has suffered from decisions imperccuiam
at the most extreme of the judicial precedent continuum to being distinguished the latter being
the subject of this essays investigation. The question now is what the current nature of the law
and has there been a move toward distinguishing Stilk v Myrick?
To distinguish a case requires that the holding or legal reasoning (ratio decidendi ) of a
precedent case will not apply due to materially different facts between the two cases according to

16

[1809] EWHC KB J58

17

Malleson, Kate and Moules, Richard. The Legal System. Oxford University Press.

18

ibid

Kate Malleson and Richard Moules19. Care must be taken at this stage to capture the fundamental
requirements necessary to establish the ideal. Grant Lamond20 argues that they are two
constraints in achieving the ideal that the factors in the ratio of the earlier case must be
preserved in formulating the ratio of the latter case, and the ruling in the later case must still
support the result reached in the precedent case. It would appear as if this essay is faced with a
less than ideal situation but what does this mean with regard to the law at present?
In Re Selectmove21 a company owed tax to the Inland Revenue and offered to pay in
installments. The tax collector indicated that he would be in touch with the company if
agreement could not be reached. The Inland Revenue ordered payment of all the taxes due or
they would take immediate actions against the company. The company tried to invoke the
principle of Williams v Roffey22 that the promise they made is carrying out an obligation which
is existing was supporting the consideration for the deal to pay the debts in parts. The Court of
Appeal differentiated Williams v Roffey that it contained the precedent of services and goods not
debt payments.
The debate engages goods and services as opposed to debts owed and the concept of a practical
benefit. What this essay proposes to do is the application of deductive analysis through the
application of the IRAC method in an effort to answer the question posed.

19

Ibid 17

20

Grant Lamond "Precedent and Analogy in Legal Reasoning: 2.1 Precedents as laying down
rules: 2.1.2 The practice of distinguishing". Stanford Encyclopedia of Philosophy Stanford
University

21

[1993] EWCA Civ

22

[1989] EWCA Civ 5

IRAC
ISSUE
1. Whether Williams v Roffey Bros & Nicholls (Contractors) Ltd [1990] All ER 512 was
wrongly decided?
2. Whether the decision has led to impairment of the rule articulated in the landmark case of
Stilk v Myrick (1809) 2 Camp 317
RULE:
1. If a party has an existing contractual duty to do an act, this act cannot be used as
consideration for a new promise Stilk v Myrrick [1809] EWHC KB J58 unless the party
goes beyond their existing duty: Hartley v Ponsonby [1857] 7 EB 872.
2. If the belief by judges is one where there is a fundamental problem with the tenants of a
case the process of distinguishing is employed in an attempt to avoid it23.
APPLICATION:
1. The claimant Williams continued work on the flats for a further 6 weeks, it must be noted
that it was adduced during the trial that he had in fact under priced the work contributing
to the possibility of penalty charges being applied. If the principle is applied Williams had
an existing contractual duty his continuation to work on the flats cannot be used as
consideration for a new promise Stilk v Myrrick [1809]. He did nothing more than what
was initially required Hartley v Ponsonby [1857].
2. There was no fundamental difference in the facts because Williams and Stilk had not
offered new consideration to the promise as per Kate Malleson and Richard Moules.
ADVICE
1. It is advised therefore that Williams cannot succeed in his present suit against Roffey
Brothers hence wrongly decided.
2. It is advised that while the action in Williams v Roffey Brothers does in fact comply with
impairment there must be consistent use by succeeding cases which has not happened.
Note also that Stilk v Myrick was decided at the level of court of appeal and any attempt
to alter this common law doctrine will have to take place at the House of Lords.

23

Ibid 19

CONCLUSION
The paper posits, having demonstrated through four arguments, the view that Williams v Roffey Bros &
Nicholls (Contractors) Ltd [1990] was wrongly decided resulting in, to a lesser extent, some impairment
of the rule articulated in the landmark case of Stilk v Myrick (1809). This submission is made after taking
into account the doctrine of consideration where until their determination both cases would have been
seen as indistinguishable on their facts. It is submitted that notwithstanding this compelling piece of
evidence the doctrine of judicial precedent is also substantive in its instruction on the rights and
obligations, inter alia, of judges to provide consistent, incremental instruction with respect to the common
law24. The House of Lords decided Foakes v. Beer whereas the Court of Appeal decided Williams v.
Roffey which cannot be considered officially binding precedent until the House of Lords has agreed.
While compelling the equally compelling counter argument of a practical benefit on the one hand and
cases with increasing pact must not be ignored. Williams v. Roffey has influenced the Court of Appeal in
New Zealand to abolish consideration and introduce a reliance based test creating new principles 25.

24

David McLoughlan, McLoughlan's Contract Law 15th & 16th edn.

25

Antons Trawling Co Ltd v Smith [2003] 2 NZLR 23 at [93]

NAME: Jepter Yolanderson Lorde

DATE: 21st March 2016
LECTURE: Contract Law I
LECTURER: Dr. Hans Mahncke