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The pre-existing duty rule is an aspect of
consideration Consideration is a concept of English common law and is a necessity for simple contracts but not for special contracts (contracts by deed). The concept has been adopted by other common law jurisdictions. The court in ''Currie v Misa'' declared ...
within the law of
contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
. Originating in
England England is a country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separated from continental Europe b ...
the concept of consideration has been adopted by other jurisdictions, including the US. In essence, this rule declares that performance of a pre-existing duty does not amount to good consideration to support a valid contract; but there are exceptions to the rule.


The Rule

English law recognises bargains supported by consideration, not bare promises. However, only simple contracts need consideration to be enforceable; special contracts do not require consideration. ''
Currie v Misa ''Currie v Misa'' (1875) LR 10 Ex 153; (1875–76) LR 1 App Cas 554, is an English contract law case, which in the Exchequer Chamber contains a famous statement by Lush J giving the definition of consideration in English law. Lush J said, Fact ...
'' (1875) declares that consideration may comprise any of these positive and negative matters: * Right, Interest, Profit, Benefit * Forbearance, Detriment, Loss, or Responsibility"


The basic rule

The leading case is ''
Stilk v Myrick ''Stilk v Myrick'' King's_Bench_on_the_subject_of_809EWHC_KB_J58is_an_English_contract_law_case_heard_in_the_Court_of_King's_Bench_(England)">King's_Bench_on_the_subject_of_Consideration_under_English_law">consideration._In_his_verdict,_the_jud ...
'' (1809), where a captain promised 8 crew the wages of two deserters provided the remainders completed the voyage. The shipowner refused to honour the agreement; the court deemed the eight crew were unable to enforce the deal as they had an existing obligation to sail the ship and meet "ordinary foreseeable emergencies". However, in two cases the courts held that claimants provide good consideration if they act "above and beyond" their contractual obligation: * In ''
Hartley v Ponsonby ''Hartley v Ponsonby'' 85726 LJ QB 322 is a leading judgment on the subject of consideration in English contract law. The judgment constituted an amendment to the precedent set by ''Stilk v Myrick''809EWHC KB J58 that allowed contractual duties t ...
'' (1857), crew who were promised a bonus after ''half'' the complement deserted could enforce the promise of a bonus. * In ''
Glasbrook Bros v Glamorgan CC ''Glasbrook Brothers Ltd. v Glamorgan County Council'' 924UKHL 3 (19 December 1924) 925 Year 925 ( CMXXV) was a common year starting on Saturday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * May 15 – Nicholas I Mystikos, twice the Ecumenical Patriarch of Constantin ...
the police, who had been asked to protect a colliery from vandalism during a strike could seek recompense from the mine-owners.


Issues of "public policy"

The rule may be affected by issues of
public policy Public policy is an institutionalized proposal or a decided set of elements like laws, regulations, guidelines, and actions to solve or address relevant and real-world problems, guided by a conception and often implemented by programs. Public p ...
, as in: ''
Collins v Godefroy Collins may refer to: People Surname Given name * Collins O. Bright (1917–?), Sierra Leonean diplomat * Collins Chabane (1960–2015), South African Minister of Public Service and Administration * Collins Cheboi (born 1987), Kenyan middle- ...
'' (1831), '' England v Davidson'' (1840) and '' Williams v Williams''
957 Year 957 ( CMLVII) was a common year starting on Thursday (link will display the full calendar) of the Julian calendar. Events By place Europe * September 6 – Liudolf, the eldest son of King Otto I, dies of a violent fever nea ...
* In ''
Collins v Godefroy Collins may refer to: People Surname Given name * Collins O. Bright (1917–?), Sierra Leonean diplomat * Collins Chabane (1960–2015), South African Minister of Public Service and Administration * Collins Cheboi (born 1987), Kenyan middle- ...
'' a
subpoena A subpoena (; also subpœna, supenna or subpena) or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of ...
'd witness to whom the defendant promised a guinea per day as "attendance money" could not enforce the agreement; the witness had an existing duty to attend and it would be contrary to public policy to permit such payments. After all, one might then contemplate paying witness not to appear! *In '' England v Davidson'' a policeman was allowed to claim a reward for offering information leading to a criminal's capture; it was held to be "in the interest of justice". * In '' Williams v Williams'', where a husband promised his estranged wife an allowance if she did not "pledge his credit",
Lord Denning Alfred Thompson "Tom" Denning, Baron Denning (23 January 1899 – 5 March 1999) was an English lawyer and judge. He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 when ...
MR held the promise was enforceable as it was "not contrary to public policy:".


Issues of "Benefit"

The court may also enforce an agreement provided that is gives benefit: * In ''
Ward v Byham Ward may refer to: Division or unit * Hospital ward, a hospital division, floor, or room set aside for a particular class or group of patients, for example the psychiatric ward * Prison ward, a division of a penal institution such as a priso ...
''
956 Year 956 ( CMLVI) was a leap year starting on Tuesday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * Summer – Emperor Constantine VII appoints Nikephoros Phokas to commander of the ...
an unmarried couple with a child separated after 5 years. The husband promised to pay the mother £1 per week provided she ensured the child was well looked after and happy. The Court held that (although she had an existing duty to care) the promise was enforceable as being in the public interest. * In ''
Williams v Roffey is a leading English contract law case. It decided that in varying a contract, a promise to perform a pre-existing contractual obligation will constitute good consideration so long as a benefit is conferred upon the 'promiseor'. This was a depar ...
''
990 Year 990 ( CMXC) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar. Events By place Europe * Al-Mansur, ''de facto'' ruler of Al-Andalus, conquers the Castle of Montemor-o-Velho (mode ...
a contractor subcontracted joinery work for an agreed price of £20,000. (The main contract with the client included a
penalty clause Penal damages are liquidated damages which exceed reasonable compensatory damages, making them invalid under common law. While liquidated damage clauses set a pre-agreed value on the expected loss to one party if the other party were to breach th ...
for delay). The joiner ran out of funds and was heading for bankruptcy, so he asked the contractor for an extra amount, some of which was reluctantly paid. The job was finished on time, but the contractor refused to pay the final sum. The court held that the revised agreement was enforceable and the contractor, by promising the extra cash, had received the valuable benefit of being free of penalties and possible problems with a new subcontractor.


Practical issues

Any contracting party who wishes to amend the agreement must provide new consideration. This situation typically arises in one of three different ways: * Pay less If one party has performed their part of the contract, but the other party refuses to pay unless the amount owed is reduced, the full amount remains payable: ''
Pinnel's Case ''Pinnel's Case'' 6025 Co. Rep. 117a, also known as ''Penny v Cole'', is an important case in English contract law, on the doctrine of part performance. In it, Sir Edward Coke opined that a part payment of a debt could not extinguish the obligation ...
'' (1602). Any attempt to use
promissory estoppel A promise is a commitment by someone to do or not do something. As a noun ''promise'' means a declaration assuring that one will or will not do something. As a verb it means to commit oneself by a promise to do or give. It can also mean a capacity ...
will fail if the debtor behaves inequitably: ''
D&C Builders v Rees ''D & C Builders Ltd v Rees'' 965EWCA Civ 3is a leading English contract law case on the issue of part payment of debt, estoppel, duress and just accord and satisfaction. Facts D & C Builders Ltd was a two man building firm run by Mr Donaldson ...
''
966 Year 966 (Roman numerals, CMLXVI) was a common year starting on Monday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * 23 June - Arab-Byzantine Wars, Byzantine-Arab War: Arab-Byzantine ...
* Pay more One party refuses to perform her side of the contract unless a larger sum of money is paid. For example, Christine agrees to sell Julian a set of textbooks for $300. Julian wires $300 to his friend Jake, who is charged with picking up the textbooks and delivering the $300. After the money has been wired and delivery arrangements have been made, Christine calls Julian and states that she has changed the price to $350 and will not deliver the books to Jake unless Julian promises to pay an additional $50. The rule will apply so Julian could agree to pay the extra money but then not do so when the books are delivered. (If Julian actually paid the extra money, he could sue later under "duress" to recover the $50.) * Public duty The party seeking payment already has a public duty to perform the act. For example, a government employee polygraph expert might ask a criminal about an unrelated crime during the administration of a polygraph. If the criminal admits to the crime and the employee then seeks a reward for identifying the perpetrator, he would not be entitled to it under the legal duty rule because he already has a public duty to find out about crimes.


Exceptions

The legal duty rule does not apply if the parties mutually agree to change the terms of the contract. For example,the homeowner and contractor could agree to include a new window at an additional cost of $1000. Alternatively, the parties could agree not to perform part of the contract for a $500 reduction in the price. Both modifications to the original contract would be enforceable because there was consideration for each. The legal duty rule protects one party when the other is trying to change the terms of the agreement unilaterally. There are ways around the legal duty rule, such as mutual
rescission Rescission is the noun form of the verb "to rescind." It may refer to: * Rescission (contract law) * Rescission bill, a procedure to rescind previously appropriated funding in the United States * A synonym for repeal in parliamentary procedure * ...
of the existing contract with a clear indication of such rescission (literally tearing up the old contract). Also, in some states, parties may renegotiate
contracts A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
to include additional benefits if, for example, the party performs unexpected or additional duties, the parties assent in
good faith In human interactions, good faith ( la, bona fides) is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case ...
, or a new contract is agreed. If contractual parties owe each other existing contractual obligations but a third party offers a promise contingent upon performance of the contract, that promise has sufficient consideration. In the US, under the
Uniform Commercial Code The Uniform Commercial Code (UCC), first published in 1952, is one of a number of Uniform Acts that have been established as law with the goal of harmonizing the laws of sales and other commercial transactions across the United States through UC ...
, modifications may be made free of the
Common Law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
legal duty rule even without consideration provided that the modification is made in good faith. See UCC § 2-209. However, the
Statute of Frauds The Statute of Frauds (29 Car 2 c 3) (1677) was an Act of the Parliament of England. It required that certain types of contracts, wills, and grants, and assignment or surrender of leases or interest in real property must be in writing and sign ...
must be complied with. Thus, a written contract is necessary if the contract as modified comes within the scope of that statute. For purposes of the UCC, a contract must be in writing if it is for the sale of goods where the price exceeds $500. UCC § 2-201. The pre-existing duty rule has been abrogated under the ''Restatement, Second of Contracts § 89'', which does not require independent consideration if the parties mutually and voluntarily agree t