232 the enforceabilit y of promises

courts are unlikely to find it is invalid through force and fear when Paul could have exercised his contractual remedies and recovered damages in full for Robert’s breach. It would therefore appear that Paul must pay the increased amount once Robert fulfils his side of the agreement. If Paul could not have established his loss, there is no authority in Scotland that he could then have the variation set aside on the ground of economic duress.

If the variation is analysed as a unilateral obligation to pay more, it is unlikely that it will need to be established in writing as it is made in the course of Paul’s business in terms of s. 1(2)(a)(ii) of the 1995 Act. It can also be argued that the terms of the Act are inapplicable as the promise is nongratuitous as Paul receives the benefit of performance being completed by Robert.

england

It is reasonably clear in English law that in either of these cases, Paul is not obliged to pay the extra sum. Until recently, the reason given for this result would have been that no ‘fresh’ consideration was provided or promised in exchange for Paul’s promise to pay more. Robert agreed to finish the work, but on the traditional view of consideration promising to do no more than that which one already has a legal obligation to do, which is what Robert did, is not consideration.

Thus, in the famous case of Stilck v. Myrick,43 a captain’s promise to pay his sailors higher wages following the desertion of two of the crew was unenforceable because, according to one report of the case,44 the sailors were doing no more than they were already legally obliged to do. And in various cases with facts roughly analogous to Case 9, the pre-existing legal duty rule has been applied in refusing to enforce a renegotiation.45

Following the landmark decision of Williams v. Roffey Bros. & Nichols (Contractors) Ltd,46 however, it is likely that the reason given for refusing to enforce the variation now would be that it was made under duress. According to Williams, the consideration rule is satisfied if the promisor

43[1809] 2 Camp. 317 and 6 Esp. 129.

44One reason this case is well known is that there are two reports of the case, and the second, by Espinasse, states that the suit by the sailors failed for ‘policy’ reasons: an explanation more consistent with the contemporary view that such cases are really about duress.

45D & C Builders v. Rees, where the plaintiff builder agreed to accept less than the sum owed to him by the defendant for work done on the defendant’s premises because he was

Ltd.54 The defendants were main building contractors employed to refurbish a block of flats in London. The defendants engaged the plaintiff to carry out the carpentry work in the refurbishment of the flats for a total price of £20,000. Before the carpentry work was completed, however, the plaintiff ran into financial difficulty, partly because the work had been underpriced. The defendants, fearing that the carpentry work would not be completed on time, and facing a penalty clause in the main contract should it overrun, promised to pay the plaintiff an additional sum of £10,300. After the plaintiff proceeded with the carpentry work the defendant refused to pay the extra money, whereupon the plaintiff ceased working and sued for the additional sum promised.

Notwithstanding the decision in Stilck v. Myrick, the Court of Appeal held that the defendant’s promise to pay the additional sum was enforceable. It held that where a party to a contract promised to make an additional payment in return for the other party’s promise to perform his existing contractual obligations and as a result secured a benefit or avoided a detriment, the advantage secured by the promise to make the additional payment was capable of constituting consideration therefor, provided that it was not secured by economic duress or fraud.

In the Williams case counsel for the defendants accepted that their clients may have derived, or hoped to derive, practical benefits from their promise to pay the additional sum, by way of ensuring that the plaintiff continued working and did not stop in breach of the sub-contract, avoiding the penalty for delay in the main contract, and avoiding the trouble and expense of engaging other people to complete the carpentry work. The Court of Appeal felt that these potential benefits resulted in a commercial advantage to the defendants and that this benefit accruing to the defendants provided sufficient consideration to support the defendants’ promise to pay the additional sums. On the facts of the case the question of duress did not arise.

One Irish commentator has described the propositions enunciated in the Williams case as ‘controversial and difficult’. It is unclear whether the approach in the Williams case would be followed in Ireland. If the Williams approach is rejected and the traditional approach maintained, then Paul’s promise to pay Robert an extra amount will not be enforceable in the circumstances of either contract in Case 9.

If the Williams approach were to be followed in Ireland, would Paul’s promise to pay Robert the extra amount be enforceable in Cases 9(a) or

54 [1991] 1 QB 1.