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Pre Existing Duties Notes

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This is an extract of our Pre Existing Duties document, which we sell as part of our Contract Law Notes collection written by the top tier of University Of Ottawa students.

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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)

SAILORS + CAP

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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