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Pre Existing Duties Notes

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THEME 13: PRE-EXISTING DUTIES Generally, the law will see that which must be done as a result of legal obligations is something that simply ought to be done (A is giving up nothing for B because the law already requires A to do X). From the law's point of view, a promise to do what one is already bound to do should be indistinguishable from a promise to do what someone has already done. Given that A must do X, the law sees this as non-optional and a necessary act. A is giving up nothing in exchange for B's promise. This concept has slowly lost its strength in the courts today. RECISION: This is an equitable remedy. If awarded, the judge is going to attempt to give back to both sides so that they are back in their initial positions. PART 1: ORIGIN OF PRE-EXISTING DUTIES (PROMISE) 1) PRE-EXISTING PRIVATE LAW o Contract that has been struck between two parties gave rise to a duty that I owe you 2) PRE EXISTING PUBLIC DUTY o Such as a statutory duty or a duty created by common law (ex. Reasonable care) o Courts say that a pre-existing public duty is not sufficient consideration (I already have a public duty
? I promise to do something for you within the same scope, then my agreement doesn't give rise to consideration
? only way prior public duty is consideration is if something is done over and above the duty 3) PRE-EXISTING DUTY TO A THIRD PARTY o Entering into a contract with you and your neighbor o Could amount to sufficient consideration - depends on whether you could have enforced the duty without a contract CASE RULE FACTS REASONS Stilk v Myrick (1809)


I: Was there consideration in captain's promise?

A voluntary gratuitous promise is of no force or effect unless under seal. If extra money is offered for preexisting obligation, agreement is not enforceable.

D: Judgment in favour of CAP

Gilbert Steel Ltd v

Carries Stilk ratio.

- pre existing duty given from captain to crew to give them wages of 2 members that were deserted if he didn't find anyone between London and Baltic
- he found crew and dint' pay them
- action against captain

- PL entered into

- courts trying to avoid economic duress for policy reasons such that mutiny will not threaten ships in the future
- for a contract to be enforceable, fresh consideration must be provided
- the captain's promise carried no consideration - the crew had preexisting duty to get the ship home WILSON J: the oral

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