Contract Law - Seminar 10 Variation of Contracts, Part-payment, absence of consideration and promissory estoppel 1 Coote B, 'Consideration and Variations: A different solution' [2004] 120(Jan) LQR 19-23 . Unless the conditions for waiver or estoppel are present, the variation of a contract has also to be by contract . A simple contract to vary needs to conform to the requirement for formation, namely agreement, consideration and an intention to make legal relations o When one of the parties promises no more than he undertook under the contract being varied - need for consideration raises problems . If contract is an executory bilateral one - the promise or the benefits promised, can be consideration because they are already owed by the promisor to the promise . In Roffey Bros Court of Appeal sought to solve this problem by extending the concept of consideration to encompass incidental benefits, additional to those contracted for, which the promisee might hope or express to flow from the promisor's continued performance of his existing obligations . Some find it hard to accept that the consideration required for the formation of a contract can consist of no more than the hopes and expectations of benefit entertained by a promise . Court of Appeal New Zealand - preferred to altogether dispense with the need for consideration in variation contracts . Dispensing with the need for consideration in variations has been proposed for many years . Its adoption means that the Roffey Bros type of consideration can be discarded while making it still possible to secure results of the sort Roffey Bros was intended to achieve Pinnel's Case [1602] 5 Co Rep 117a - starting point in law for part-payment of debt · Defendant, Cole, owed the claimant Pinnel, sum of £fl 10s . Pinnel sued Cole for recovery of the debt . Cole had at Pinnel's request, paid £5 2s 6d one month before the debt was due to be paid and stated that they had an agreement that this part payment would discharge the entire debt . Defendant argued the claimant had accepted partial payment of the debt as satisfaction of the whole . However, it was a general rule that payment of a lesser sum than that which was owed in satisfaction of a debt couldn't discharge the obligation to repay the whole amount . Court confirmed the general rule that part payment of a debt can't be satisfaction for the whole. However, since the payment had been made early this was sufficient to discharge the debt . Lord Coke: 'Payment of a lesser sum on the day in satisfaction of a great sum cannot be any satisfaction of the whole ... but the gift of a horse, hawk, or robe etc. in satisfaction is good. ftor it shall be intended that a hawk, horse, or robe, etc. might be more beneficial to the plaintiff than the money'
· By paying someone money early the defendant had provided the claimant with a further benefit and