Stilk v Myrick
Citations: (1809) 2 Campbell 317; 170 ER 1168.
The defendant was the captain of a ship. During the course of a sea voyage, several of the defendant’s sailor’s deserted. The defendant was unable to find replacements. He promised the remaining sailors that if they stayed, he would share the wages intended for the deserters with them. The remaining sailors agreed. However, when the voyage was complete, the defendant refused to pay the extra money.
The claimant, one of the sailors, sued the defendant for breach of contract. The defendant responded that there was no contract, because the claimant did not provide consideration for his promise to pay more.
- Had the sailors provided consideration for the promise to pay more?
The Assizes court held in favour of the defendant. The sailors were already under a contractual obligation to work the duration of the voyage. They could not use a promise to perform their existing contractual duty as consideration. Since they had not provided anything else, there was no consideration and no contractual variation.
This Case is Authority For…
A promise to perform an existing duty is not good consideration.
It is unclear how this case would be decided in modern times in light of the changes made to the law on ‘promises to pay more’ in Williams v Roffey Bros  2 WLR 1153. It is possible, as was suggested in Williams, that a modern court would find:
- That there was consideration to vary the contract, because there was practical benefit to the captain in stopping his remaining men deserting; but
- The variation was voidable for economic duress.
However, since there is considerable uncertainty as to what constitutes a ‘practical benefit’, the matter remains unclear.