Mrs Hyndley is the owner of two properties that she rents to students in the Belfast area. In January 2008 she asks her friend and next door neighbour Frederick, a local estate agent, to collect the rents from her tenants while she goes off on a 6 month round the world cruise. She does not discuss terms or payment with Frederick. However, Frederick agrees and does collect the rents. When Mrs Hyndley returns to Belfast in July 2008, she is grateful to Frederick and tells him that she will give him £500 for his work. In October 2008 Frederick still has not to receive his payment.
Can Frederick enforce the promise?
From the case above the main issue is whether Frederick will be able to show that the promise which Mrs Hyndley made to him of the payment of £500 for the work which he did for her can be classified as consideration as this work was a benefit to Mrs Hyndley as she got to go on her 6 month around the world cruise, whilst Frederick collected the rents from her student tenants for the two properties which she owns in Belfast.
There is a simple fairness that promises must be kept and Mrs Hyndley promised Frederick £500 for the work which he did for her therefore it is only fair that Frederick gets the £500 which Mrs Hyndley promised him. However whether Frederick will be able to enforce this promise which Mrs Hyndley made is questionable as Mrs Hyndley could argue that Frederick should have discussed with her the terms or payments for the work which she asked him to do before he completed the work for her and as it was not discussed before the work was done it was therefore not clear that a payment for the work which Frederick was doing for her was expected, due to their relationship as friends and neighbours.
This case is past consideration where the promise which Mrs Hyndley made to Frederick was based upon consideration that was provided before the promise was made and a promise cannot be based upon consideration that was provided before the promise was made. In general law it is said that past consideration is no consideration. Therefore the debts which are claimed to represent payments for services previously rendered are likely to be invalid without a formal agreement in place, which is most likely to occur in this case between Frederick and Mrs Hyndley as it regards a debt between them with their relationship as friends.
In the case ‘Eastwood V Kenyon’, the guardian of a young girl raised a loan to educate the girl and to improve her marriage prospects. After her marriage her husband promised to pay off the loan. It was held that the guardian could not enforce the promise as taking out the loan to raise and educate the girl was past consideration because it was completed before the husband promised to repay it. This case of ‘Eastwood V Kenyon’ has similarities to the case of Frederick and Mrs Hyndley as both are based on the issue of past consideration and from the outcome of the Eastwood V Kenyon case it does not seem likely that Frederick will be able to enforce the promise which Mrs Hyndley made to him as Frederick ha completed the work for Mrs Hyndley before she has promised to pay him the £500 as the guardian had took out the loan for the girl before the husband had promised to repay the loan.
Furthermore, where a contract exists between two parties, and one party subsequent to formation promises to confer additional benefit on the other party to contract that promise is not binding because the promisee’s consideration which is his entry into the original contract had been completed at the time the next promise was made. Therefore this indicates that the promise which Mrs Hyndley made to Frederick is not binding as this his promise to do the work for Mrs Hyndley had been completed before Mrs Hyndley had promised him the payment of £500.
On the exemptions of past consideration Lord Scarman stated: ‘An act done before the giving of a promise or to confer some other benefit can sometimes be consideration for the promise. The act must have been done at the promisor’s request, the parties must have understood that the act was to be remunerated either by a payment or the conferment of some other benefit, must have been legally enforceable had it been promised in advance.’
The principle of Implicit Assumpsit allows a court to incorporate a past benefit into a new contract, and thereby deem that the contract was sufficient consideration to be enforceable. In general, past benefits are not consideration and assumpsit can only be invoked in circumstances where: the past benefit must have been at the explicit request of the person against whom the claim was made; there must have been an assumption that the benefit will be recompensated in the future and that all the requirements for a valid contract must be in place. It would be quite difficult for Frederick to argue implicit assumpsit as although the past benefit to Mrs Hyndley of her getting to go on the 6 month world cruise whilst Frederick collected the rent form her tenants at her request, it would be difficult to prove that there was a clear understanding that Frederick was to receive payment for this work done without any terms or payments being discussed prior to the work being done due to the relationship which Frederick and Mrs Hyndley have as both neighbour and friend.
In the case of Frederick V Mrs Hyndley, Mrs Hyndley the promisor did request Frederick to do the work for her, however as terms and payments had not been discussed, it was not made clear that Frederick’s act was to be remunerated either by payment or the conferment of some other payment, therefore I do not think that it would be possible for Frederick to enforce the promise which Miss Hyndley made to him for the work which he had done as this is past consideration due to the promise being made after the work was done and as payments and terms where not discussed between Frederick and Mrs Hyndley and also as they where both friends and neighbours there was therefore not a clear understanding as to whether Frederick would receive a payment once he had completed the work which Mrs Hyndley requested him to do, when he had promised her that he would do the work.
Another case which deals with past consideration is ‘Lampleigh v Braithwait’ where immediately after the defendant killed a third party, Patrick Mahume, he requested the plantiff to help him in getting pardon from the king. The plantiff agreed to perform the labour for the defendant, and took it upon himself to travel at his own expense to meet with the King to obtain the pardon. After he had done so, the defendant promised the plantiff a consideration of one hundred pounds. The defendant never delivered the said money, and the plantiff is suing to recover the damages for the breach of contract. From this case it was concluded that if the plantiff did the labour for the defendant voluntarily, and out of his own will, he cannot recover any monetary compensation for his actions. However, if the labour, as in this case, is performed at the request of the defendant, and if a promise of compensation follows the labour, the plantiff is entitled to recover. Thus a promise which is made in recognition of a benefit previously received can be enforced by the courts.
The ‘Lampleigh v Braithwait’ case is very similar to the Frederick V Mrs Hyndley case as they both deal with past consideration where the plantiff did the work which the defendant requested of him and after this work is completed the defendant offers the plantiff money to compensate this work, as when Frederick completed the work which Mrs Hyndley requested of him and then after the work was done she offered him a payment to compensate him for the work he did. Therefore as determined from the ‘Lampleigh v Braithwait’ case, as Frederick did the work for Mrs Hyndley as she requested and if a promise of compensation follows the labour then Frederick should be entitled to recover the payment thus a promise which is made in recognition of a benefit previously received can be enforced by the courts.
However the difference in these two cases is the relationship between the defendant and the plantiff and Frederick and Mrs Hyndley as the relationship between Mrs Hyndley and Fredrick is as friends and also neighbours whereas between the plantiff and the defendant is not as friends and therefore is more official and it would be expected that the plantiff when he did the wok for the defendant would have expected to be compensated in return for the work done whereas there would not have been a clear understanding that Mrs Hyndley was to pay Frederick for the work done as they where both friends and neighbours.
Frederick could try and argue that there was an unspoken understanding that the service would be paid for and the later promise for £500 was said to be merely conformation of the original unspoken one. Although it will be harder for Frederick to try and argue for this unspoken understanding because of Frederick and Mrs Hyndley’s relationship as neighbours and friends.
To conclude therefore I feel that it would not be possible for Frederick to enforce the promise which Mrs Hyndley made to him because of two main issues, firstly because the promise which she made is past consideration as Frederick already had the work completed when Mrs Hyndley made the promise of a payment of £500 to him and when Frederick agreed to complete the work no terms and payments where discussed and because of Mrs Hyndley and Frederick’s relationship as friends and neighbours it would therefore be harder to try and prove that there was an unspoken understanding that there was compensation to be made to Frederick for doing the work which Mrs Hyndley asked him to do on request.