Consideration 模板.docx

Consideration 模板：思路：还钱 existing duty no considerationno contract 还是得还 第三方介入: pinnels case/plus value Promissory estoppel 无效也可证明 Existing dutyPractical benefit Privity of contract还钱 promise 就还这点从他老婆那里拿到 反悔 -NO CONSIDERATIONThis question involves application of the important principle that consideration need not be adequate; it must be sufficient (Chappell & Co Ltd v Nestle Co Ltd; Thomas v Thomas). The mere performance of a contractual duty cannot be good consideration for any subsequent promise (Stilk v Myrick). The rule in Pinnels Case and Foakes v Beer and D & C Builders v Rees state that payment of a lesser sum on the day in satisfaction of a greater sum cannot be good consideration for the whole debt. Thus, in this case, Gill may still be sued for the additional $500 since he has provided no consideration for being absolved from the debt. Any payment received by Bright was merely part of what he was already contractually owed. In other words, Gill has given no fresh consideration to relinquish his debt.The strict application of Pinnels Case may lead to harsh results and the law has developed a number of exceptions to this rule. The most obvious exception applicable to the facts is part payment by a third party. Here, the part payment was made by Gills wife, a third party. This is sufficient consideration for Gill being released from the remainder of the debt according to Hirachand Punamchand v Temple. If Gill could be sued for the remaining $500, it would be a fraud on his wife (the third party) according to that case.Another potential exception worthy of mention here is promissory estoppel that was traditionally used as a defence to prevent someone going back on their promise after the other party has acted in reliance on that promise and suffered detriment (Waltons Stores v Maher; Je Maintendrai v Quaglia). Arguably, Bright may be estopped from enforcing his further right to sue, given that he has made a promise regarding present or future conduct which is intended to be binding and is intended to be acted upon. This is the principle of the Hightrees case which is the landmark decision on promissory estoppel. Here, estoppel may be raised by Gill to defend an action for the remaining $500 debt. While the concept is being employed as a “shield” (or as a defence) which is required by Hightrees Case, there is no detriment suffered by Gill if the debt is enforced; he has not changed his position by reliance on the promise. Accordingly, the defence is unlikely to succeed.It is questionable whether Waltons Stores (Interstate) Ltd v Maher, the leading Australian decision on promissory estoppel, would assist Gill either. That case was concerned with promissory estoppel being used as a “sword” (or by a plaintiff to bring an action) and not as a defence as in this case. Even if relevant, Gill is unlikely to succeed (based on Brennan Js judgment), since once again there is no reliance or detriment suffered by Gill as a result of Brights promise.纯promissory estoppel:This issue of this case is whether A can obtain promissory esstople under law of equity to stop D from denying his promise. The legal problem for Alfred is that there is no written evidence of his parents promise to transfer part of their farm to him. It will be recalled that some contracts are not enforceable in court unless there is evidence in writing of the contract. 如果需要的话Specifically, under s 126 Instruments Act 1958 (Vic) (the Victorian reenactment of s 4 of the Statute of Frauds 1677), a contract for the sale or disposition of an interest in land cannot be enforced unless it is evidenced in writing. Accordingly, the oral agreement between Alfred and his parents is unenforceable under statutory principles as the relevant formality requirements have not been complied with. However, it is necessary here to consider the application of the doctrine of promissory estoppel （Waltons Stores v Maher; Je Maintendrai v Quaglia）. Under certain circumstances, promissory estoppel provides a promisee with equitable rights in relation to a promise even though there is no consideration to support the promise or where the formalities of making a contract have not been fulfilled. Significantly, the Statute of Frauds and similar provisions (as in s 126 Instruments Act 1958 (Vic) prescribing formalities affecting proof of contracts does not apply when an equity is created by estoppel (Waltons Stores v Maher). Thus, promissory estoppel operates independently of any statutory writing requirements.Promissory estoppel deals with representations or promises as to future matters or acts. It prevents a promisor from reneging on promises that they have made where it would be unconscionable or unfair for them to do so. Promissory estoppel operates in favour of a promisee where the promisee has relied on a promise and would suffer some detriment if the promisor went back on their promise. It is useful here to distinguish between the English and Australian doctrines of promissory estoppel. Under English law, by which promissory estoppel was first established, promissory estoppel may only be used as a defence (a “shield”) to prevent the promisor from reneging on a promise not to enforce their strict contractual rights (Central London Property Trust Ltd v High Trees House Ltd; Commonwealth of Australia v Verwayen). The Australian High Court, however, has radically broadened the operation of promissory estoppel. In Waltons Stores (Interstate) Ltd v Maher, the High Court held that promissory estoppel may be used as a cause of action (a “sword”) to enforce an otherwise non-binding promise. Thus, the narrow doctrine of promissory estoppel (the High Trees case) would not assist Alfred because, as indicated earlier, it can only be used as a defence to estop action on a preexisting contract. However, the broader Waltons Stores doctrine of promissory estoppel may provide Alfred with an equitable remedy. To succeed in a claim for compensation using the Waltons Stores case as precedent, the promisee must establish the following criteria:(a) assumption: the promisee assumed a legal relationship existed or would exist(Legione v Hateley/Quaglias; Walton Stores (interstate) Ltd v Maher)(b) responsibility: the promisor was responsible for the assumption(c) the promisor induced the promisees assumption or expectation(d) the promisor did not forewarn the promisee that the promise may not be “delivered”.(e) reliance: the promisee acted on the assumption(f) detriment: the promisee suffered loss on the assumption not being fulfilledIn applying these criteria to Alfreds case, it would appear that Alfred has a valid claim. Indeed, the facts of Alfreds case bear a number of similarities with those of Waltons Stores. First, it would appear that Alfred assumed that a legal relationship would exist/existed, given that a contract was being drawn up by lawyers to give effect to the promise. Second, his parents were responsible for this assumption, having told Alfred that a contract was being arranged by their lawyers to give effect to the transfer. Third, it would appear that his parents induced Alfreds assumption/expectation, having promised to transfer part of their farm to him if he continued to work on the farm. Fourth, his parents failed to act to avoid Alfreds detriment. They let Alfred assume that their promise to him would be fulfilled even though they intended to give the property to their daughter Fifth, Alfred acted in reliance on this assumption by staying and working on the farm and by obtaining a bank loan to finance the construction of a new house. Sixth, Alfred suffered detriment acting pursuant to this assumption, including giving up a return to his business, by working on his parents farm and by taking out a loan to build a new home. Accordingly, under Waltons Stores, promissory estoppel would operate in favour of Alfred so as to treat the transfer of part of the parents farm as though it were executed and delivered.Finally, it is also worth noting that Alfred may also have a claim for compensation under s 9 Fair Trading Act 1999 (Vic) on the basis of an action for misleading or deceptive conduct by his parents. Privity of contract:Problem deals with privity of contract. According to the common law principle, only partie