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39愛的鼓勵 0訂閱站台

1a) Normally the payment of a lesser sum by a debtor to the creditor normally cannot be treated as a consideration for a
promise by the creditor to have the full debt settled. This rule is established in the old Pinnel`s rule. Its underlying
reason is because performance of a contract must be complete and exact ( Cutter v Powell, 1795 ). Thus, the
promise of the creditor is not valid because the debtor is already bound by an existing contractual duty to make full
repayment ( Stilk v Myrick, 1809 ), and the partial repayment of debt by the debtor is not a valid consideration to
support the promise by the creditor to have the remaining debt discharged.
Nowadays, the pinnel`s rule will be affected by the Doctrine of Promissory Estoppel in equit. Under this doctrine if a
promise is made which is intended to affect legal relations and to be acted by the promisee and is acted upon, the
promisor is estopped from bringing an action against the promisee which is inconsistent with his promise even
though the promise is not supported by consideration ( Central London Property Trust Ltd. v High Trees House
Ltd.,1947 )
However in this case, mei mei has accepted the balance payment - a pen. It is based on the maxim that -
consideration need not be adequate but must be sufficient ( Thomas v Thomas,1842 ). Thus, mei mei has no right
to claim the balance $250.
b) I don`t know what`s your meaning of preferential treatment, is Betty agreed to pay her daughter money first, then
Tsang always complaint with his mum ? or whatever ?
But anyway, for the domestic or social agreement, it is presumed that the parties are having no intention to create
the legal relationship. Therefore, the contract entered between them is readily being treated as a gentleman`s
agreement. This presumption will also apply if the parties are living in amity when the contract is formed ( Balfour v
Balfour, 1919 ). However, this presumption of course is rebuttable when the parties are not living in amity when the
contract is formed ( Merritt v Merritt, 1970 )
c) In this case, Tsang cannot claim the concert ticket from chong. It is because Past Consideration Is No Consideration.
Past consideration cannot be used to support a promise since the act was performed before the other party`s
promise was made and the relevant benefit has already been given and received. ( it means no value to the
promisor ) ( Roscorla v Thomas, 1842 )

1a) Pinnel`s case established the general rule that payment of a smaller sum does not discharge a larger debt. It should be noted that there are 3 exceptions to this general rule.
Exceptions:
i) Where consideration is provided (ie. creditor ask something more)
ii) Where the debtor did something different (ie pay smaller sum at a different time)
iii) Where payment is made by a third party. The case authority is (Hirachand Punachand v Temple)

Since MeiMei accepted the ball pen and $250, it might be argued that the debtor did something different. However, we should also consider if there are any improper pressure and practical benefit to MeiMei as this might lead to (William v Roffey) in which it was found to have sufficient consideration for performance of a contractual duty with the same party. However, I think (Stilk v Myrick) applies more to this case because MeiMei didn`t not gained any practical benefits nor is there convincing evidence that improper pressure is present. Therefore, from this view, Tsang still needs to pay MeiMei the remainer of the money owed.

Also, there are 5 criterias for promissory estoppel to be applied
i) There must be an existing and continuing relationship
ii) There must be a reliance on the promise (Alan&Co v El Nasr Export & Import Co.) aniii (The Post Chaser)
iv) The promise must be clear and irrevocable (Scaptrade)
v) Doctrine can only be used as a shield and not a sword (Combe v Combe)
vi) It must be inequitable to allow the promisor to go back on the promise (D & C Builders & Rees)

Presumably, MeiMei and Tsang`s deal is just a one-off thing, I doubt that promissory estoppel can help Tsang to estop MeiMei from going back on her promise.



1b) These facts are very similar to (White v Bluett) and (Hamer v Sidney). In White v Bluett, the father lend his son money and if the son keeps quiet, he do not have to give back the money. It was held that the son must give pay back since he gave up nothing in return of his father`s promise and therefore no consideration. However, in an American case (Hamer v Sidney), an uncle agrees to pay his nephew money if he does not smoke, gamble, or drink for several years. It was held that there was sufficient consideration because his nephew has given up his freedom. We are not sure which one of the case will be follwed.

c) Exception to past consideration is no consideration rule
(Pao On v Lau Yiu Long) - a case from privy council
Past consideration is consideration if all 3 conditions are satisfied
i) The act must have been done at promisor`s request (Lampleigh v Braithwait)
ii) The parties understood that some payment or benefit would be confirmed (Re Casey`s Patent)
iii) If the benefit must have been legally enforceable if paid in advance

From the facts we do not know if Chong request Tsang to tow the his car. Also, no payments were brought up until after the car was towed. Therefore, this exception does not applies.