Consideration must not be past consideration this

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Consideration must not be “ past consideration ”. This merely means that the ‘consideration’ that supposedly buys a promise must not pre- date it. However, there is a distinction between executed consideration and past consideration. Executed consideration occurs where something is done before the promise but in response to a request and in the expectation that there will be some payment for the requested action. In such cases, even though the performance occurs only in the expectation that there will be some sort of reciprocal payment , it is directly related to the expected promise and will be good consideration for the promise when it occurs. Past consideration occurs where something is done without expectation of benefit or return . If some promise is later made in gratitude that promise is not enforceable. Because the past action was not directly referable to the promise, it cannot be good consideration for it. The difference is essentially the difference between me mowing your lawn because I feel unnaturally charitable and you then promising — in surprised gratitude — to give me something for my trouble (past consideration) and you asking me to mow it, me mowing it because of your request ( and the implied promise of some recompense ), and you then indicating that you will give me something for my trouble (executed consideration). In the first case I did not do what I did in response to any promise on your part and, consequently, my actions cannot be good consideration for your subsequent promise. On the other hand, what I did in the second case was in response to your request — and the implicit promise of some form of payment. Consequently, it is good consideration for your later formalisation of your earlier implied promise to pay something . The crucial difference between the two is that in the latter case I did not spontaneously provide my services but did so in response to your request. Consideration must be valuable. This merely means that the price paid for the promise must have value in the eyes of the law . That value need not be equivalent to the value of the promise but it must be sufficient
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© Stephen Graw 2012 to be of some benefit to the promisor. Value, therefore, has an extended meaning. What the promisee gives as consideration need not have any objectively determinable intrinsic value but it must have a value to the promisor . For example, in Chappell v Nestle Co. Ltd. [1960] AC 87, Nestle, as a promotional gimmick, offered EP records of a particular song for l/6d and three chocolate wrappers. In a subsequent breach of copyright action the court held that the wrappers formed part of the consideration that Nestle received for the records. While the chocolate wrappers had no intrinsic value they had value to Nestle because they represented increased sales. That value made them part of the consideration.
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