Evaluation Of The Accuracy Of Adams And Brownsword’s Comment On The Case Williams V Roffey Bros


Lush J in Currie v Misa gave what perhaps is considered the most acceptable definition of consideration in modern times- He described Consideration as some right, interest, profit or benefit one party accrues or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by another. The history of the determining the existence of consideration for a promise made by a promisor to a promise for an already existent duty was quite shaken up by the case of Williams v Roffey Bros. It was in the light of this, that Adams and Brownsword observed that in deciding to enforce a promise, the courts are guided more by asserting reasonableness, fairness and commercial reality than by the technical requirements of consideration under law. This essay will discuss the accuracy of Adams and Brownsword’s comment. To achieve this, the facts of Williams v Roffey bros, will be examined, highlight the issues of the case in pertinence to consideration. The essay will then, with supporting evidence, examine how the judges came to their decision in relation to Adams & Brownsword comment. Other cases involving consideration will also be appraised in other to compare and contrast, the facts, decisions held and the parameters that guided the said decisions. Main Body As was established in Pinnel’s case, consideration only needs to be sufficient and not necessarily adequate. It is why in Williams v Roffey, the defence team argued that there was not sufficient consideration for the Appellant to act on a promise made to the Plaintiff. The Appellant had failed to enforce his promise to pay the Plaintiff an additional sum, after the Plaintiff had run into financial difficulties, doing the work the Appellant had engaged him for, partially because the contractual agreed price was too low. The court held that although performing an already existent duty does not equal sufficient consideration, if there were addition benefits gained because of the promise, then it equals sufficient consideration. For the defence’s argument of a lack of consideration, they had relied on the case of Stilk v Myrick, where the Plaintiff had been contracted to work on a ship for a set price, agreeing to do whatever was asked heedless of emergencies.

When two crew men absconded during an emergency, the captain had promised the crew members an additional sum to carry out the responsibilities of the absconded men but failed to fulfil the promise. LJ Ellenborough held that there was “no consideration for the ulterior pay promised to the mariners who remained with the ship as they had undertaken to do all that was needed during emergencies. ” This suggests that LJ Ellenborough based his judgement on the fact that the situation that warranted the captain’s promise to pay his crew an additional amount was in fact an emergency and seeing as the Plaintiff had agreed to do whatever was asked of him, there was indeed no additional benefit moving from the plaintiff to the Appellant that hadn’t already been agreed to. It can then be said that defence’s decision to rely their argument upon the case of Stilk v Myrick was not farfetched as the Judgement was strictly based on the premises principle that dictates that performance of an existing duty does not constitute consideration. However, there is a distinguishment between the two cases. It is important to note that unlike the case of Stilk and Myric where no additional benefit was conferred to the promisor, the Appellant (Roffey bros) did confer additional benefits, or rather avoided arousing the wrath of the late completion clause they had with Shepherd’s Bush Housing corporation. LJ Glidewell made that conclusion, stating that “the original sub contracts price is too low and the additional promise to pay more is in the interest of both parties and in my opinion does not fail for lack of consideration. ” His statements, supports the notion that the Appellants did gain additional benefits by avoiding the penalty clause. In support of his word, LJ Glidewell referenced Ward v Myrick where an unmarried couple living together, procreated a daughter. After separation, the father promise to make weekly payments of $1 to the mother so as long as she makes sure the daughter is kept happy and looked after. However, when the mother married, the father ceased payments on the basis that maintenance of the child is an existing legal duty for the mother. The judge did not rule in his father. LJ Dennings commented that “a promise to perform an existing duty, or performance of it, should be regarded as good consideration, because it is a benefit to the person to whom it is given. If he gets the benefit for which he stipulated, he ought to honour it and not avoid it by saying the mother has an existing duty to maintain the child. ” His statement presumes that in as much as the promisor gets some practical benefits that is not an existing duty, there is consideration. It can be said that LJ Glidewell was right to apply the case to that of Williams v Roffey Bros. After all, the benefit for which the Appellant had stipulated was to avoid the penalty clause for late completion. Therefore, Lord Denning’s judgement is presumably applicable here and so the Appellant cannot avoid his promise by saying there was an existing duty for the Plaintiff to complete the work. After all, consideration only needs to be sufficient. Adequacy is not a criteria. This is to say, the practical benefit of having a happy child and avoiding a late completion clause have value and so are sufficient consideration for a promise to be enforced. It might then be considered unfair and unreasonable, if the comfort obtained by the Appellants isn’t not reciprocated by fulfilling the promise upon which they had gotten the practical benefit.

Examining the case of White v Bluett where the Appellant’s father had agree the Appellant would not have to pay a borrowed sum if he stopped making a certain complaint, but the Plaintiff (The father estate’s executor after his death) still sued for the sum – Pullock CB held that there was no consideration to acquit the Appellant of his duty to pay to owed sum. In the light of recent cases, it is not wrong to presume that if the case where tried in the light of the Williams and Ward case, perhaps a different outcome would have been reached. R Hooley further explained that practical benefit is deriving some comfort from their own perception of a greater chance of completion of the project on time. For it is reasonable to conclude that the father might have derived some comfort when his son stopped complaining. Another proof that before the cases of Williams and Ward, the court were less like to rely on reasonableness, but rather the strict technicality of the law. Even with that said, one might argue that there needed not to be the fulfilment of the promise because the initial contract was entered into by the Appellant with the intention that agreeing to the amount would have automatically resulted in the avoidance of the late completion clause and therefore was implied. In Hartley v Ponosby – the captain promised the crew who hadn’t absconded during an emergency, an additional sum, if they stayed and worked things out but refused to fulfil the promise. It was held that the promise was enforceable because the crew that stayed and worked had gone beyond the contractual duty. This is because unlike the Stilk case, the agreement had strictly stipulated that the Plaintiff would do anything needed in case of emergency, the Hartley case lacks that strict stipulation, which why it was concluded that they crew had gone beyond their contractual duty. It can then be said that in Williams case, since there was no strict stipulation for the work to be completed in time to avoid the late completion clause, therefore the promise made was enforceable. If this had been the grounds upon which the judges in Williams case had based their argument, then it would have been rather technical than practical, fair, reasonable or leaning towards commercial reality. After all, nowhere in the Williams case was it noted or stated that The Plaintiff went beyond their contractual. In fact, it should be noted that it was with the intent of not going beyond the contractual duties that the Plaintiff had ceased work after the Appellant had failed to fulfil his promise. One might say that the decision made in Stilk case was even a bit reliant on Practical benefit or commercial reality, it could be said that the Judges could have relied on the fact that the crew taking up the responsibilities of the absconded member ensured his ship made it through the emergency and therefore he would have accrued some additional benefits or avoiding incidents that would have led to financial liability. After all, LJ Glidewell in the Williams case had noted that it was commercially necessary for a new bargain to be made, as the previously stipulated price had been too low and so the Plaintiff would not have been complete the job. Additionally LJ Glidewell suggested that consideration when be considered, should demonstrate a pragmatic approach to the true relationship between the parties, LJ Russell also agreed by saying that intention to create legal relation should be considered when examining the existence of consideration, so long as the bargain was made on equal footing, This is another footing upon which fairness and commercial reality stands upon. Even in more recent time, in Globe Motors V TRW, the judge held that parties have the freedom to bargain a varied contracts even if the is a clause. This suggests that in making the decision in both aforementioned cases, the judges considered that it was legally binding to create an additional or varied contract even as it was fair. One might then conclude that this was a deciding conclusion that entitled the Plaintiff (Roffey Bros) to be paid an additional sum.

LJ Russell noted that it would certainly be unconscionable for the Appellant to go back on his promise. His choice word - “Unconscionable” suggests that the observation that the court leans on side on reasonability than technicality holds water. The indirect rhetorical question that LJ Russell posed was that- Would it have been reasonable if without lack of economic duress or fraud which was never argued went back on a promise to perform an existing duty? It goes without saying that LJ Russell clearly did not think so. It is examining cases like this that incites John Phillips statement that English courts rely on the reasonable expectation of the parties to decide contract law in general. – modern law review. John Phillips also notes that when determine if a bargain is unconscionable, it must be determined if the party seeking relief must be at an unfair serious advantage because of some weakness. It is important to note than once again, had the Judged relied more on technicality that practicality, reasonableness and fairness of the case, although not raised by the defence team, the judges would have looked closed to examining if there was economic duress but they only lightly touched on it before dismissing it. This suggestion is made by considering the fact that The Appellant feared financial liability if the job was not completed in time, wanting avoid the late completion penalty clause and therefore was in economic duress when the promise to pay an additional sum was made. This once again supports rather than opposed Adams and Brownsword’s observation of the courts use of practicality (Practical benefits/commercial utility) in making their decision. It is important to note that LJ Russell stated that he believed that the lack of consideration was never truly pleaded but argued in the lower court and therefore never properly raised. His reasoning was that if it had, perhaps, the principle of Estopped would have been used as a shield for the Appellant. LJ Russell further noted that “I do not believe that the rigid approach to the concept of consideration to be found in stilk v myrick is either necessary or desirable. ” It can be assumed that LJ in his calling the judgement in Stilk v Myric rigid suggest that he believes if the case has been tried at a similar time as Williams v Myrick, a more practical, fair or reasonable approach might have used by the courts in deciding, More so, LJ Russell referred to the strict technical approach in deciding if an additional promise is enforceable as necessary or desirable. One might then say that he considered using the technical approach to be unfair and unreasonable. After all, what is unnecessary to use is usually unreasonable to use. And here again, this implied that the court’s decision relied more on fairness and reasonableness than the technicality of the law. However this can be argued when examining the words of LJ Purchas in Williams v Roffey Bros.

In his words- “Stilk v Myric involved circumstances of a very special nature, namely the extraordinary conditions existing at the time, which seamen had to serve their contracts of the employment on high sea. There were strong public policies protecting ship owners from being held ransom by their disaffected crew. Therefore the decision of not enforcing the promise to pay an additional sum was not supported by consideration. The modern cases of today tend to depend upon the defence of economic duress in a commercial context. ” His words gives plausible to the reasoning that the case of Stilk v Myric, the courts did not in fact rigidly use consideration on basis of their judgement, but rather the public policies indemnifying ship owners of being held accountable to promises as such. This then gives room to assume that the court’s decision in Williams v Roffey Bros was a more evolved approach and although fair and reasonable, still in fact technically and appreciative of the principle of consideration. Even Atiyah had noted that contractual obligations did not stand on high grounds in contract law. Despite this, this still supports Adams and Brownsword observation of use of commercial utility in the courts decision. After all, LJ Purchas did say “The modern cases of today tend to depend upon the defence of economic duress in a commercial context. ” He has clearly stated that modern case of consideration do in fact appreciate the practicality of commercial reality. He also further stated that “there was a clear commercial advantage to both sides from a pragmatic point. ” Again, supporting Adams and Brownsword suggestion that courts relied on commercial utility and practicality (fairness and reasonableness) in deciding their judgements.


In conclusion, Adams and Brownsword commentary on how the judges made their decision does have validity as examined and discussed above. However, as has been discussed, perhaps the decision was made because there was room for evolvement of the principle of consideration and the judges saw it footing to apply fairness, business practicality and plausibility. After all, shouldn’t the law the fair, just and reasonable? Duncan Kennedy even supports this by saying that ‘the altruism of contract law should be the underlying rationale”. Mind Chen in her journal, argued that the practical approach is too lenient and a stricter law should be examined. Whether using the parameters used in the Williams case in others is right, is a matter of context and older cases were carefully not overturned but rather built on distinguished. The problem with the practical approach could then be that it was never properly defined in any of the cases, up till date. It would be interesting to see if an upcoming definition would appease Mind Chen’s stance on a stricter law. This is because although definitions are open to court interpretations, it still gives a specific wording parameter upon which the courts should decide.


  1. Currie v Misa (1875-76) LR 1 App Cas 554.
  2. Ward v Byram
  3. Stilk v Myric
  4. White v Bluett
  5. Williams v Roffrey Bros & Nicholls (Contractors) Ltd [1990] 1 All ER 512.
  6. Adams JR Brownsword, ‘Contract, Consideration And The Critical Path’ (1990) 53 The Modern Law Review.
  7. Hooley R, ‘Consideration And The Existing Duty [1991] Journal of Business Law
  8. Mitchell CP Mitchell, Landmark Cases in The Law of Contract (1st edn, Hart Publishing 2008)
  9. Atiyah
  10. John Phillips
  11. Kennedy D, ‘Form And Substance in Private Law Adjudication’ (1976) 89 Harvard Law Review https://www. jstor. org/stable/1340104 accessed 6 January 2019.
  12. Chen-Wishart M, ‘Consideration: Practical Benefit And The Emperor’s New Clothes’ [1997] Good Faith and Fault in Contract Law. bb 7 LEVEL 4 2018/2019
10 December 2020
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